Hitting the headlines recently was the case of Mr. T Burke v Turning Point Scotland: the first Employment Tribunal decision to hold that an employee with post-viral fatigue symptoms following COVID was disabled under the Equality Act 2010.
What is long-COVID?
For some people, COVID-19 can cause symptoms that last weeks, months or longer, after the virus itself has gone. This is known as “long COVID” and typical symptoms include:
- brain fog
- depression and anxiety
- chest pain
- heart palpitations
- joint pain
- shortness of breath
Long COVID symptoms are likely to affect someone’s ability to work.
The legal definition of ‘disability’ under The Equality Act 2010
Whilst long COVID is not currently a condition which automatically constitutes a disability under the Equality Act 2010, it may amount to a disability in law in certain circumstances.
Under the Equality Act 2010, a person has a disability if a) they have a physical or mental impairment and b) the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. “Long-term” means that the substantial adverse impact has lasted for 12 months or is likely to last 12 months or more. To qualify as “substantial” the effect must only be “more than minor or trivial.”
The case was heard at a preliminary hearing to determine the question of disability.
Facts of the case
- The claimant, Mr. Burke, was employed as a caretaker by Turning Point Scotland, a charity supporting people in need for around 20 years;
- Burke tested positive for COVID-19 in November 2020;
- Despite his initial COVID-19 symptoms being very mild and flu-like, after the isolation period he developed severe headaches and symptoms of fatigue. His symptoms included needing to lie down and rest as he was exhausted after showering and dressing; being unable to perform household chores; having joint pain in his legs, arms and shoulders and having a disturbed sleep pattern;
- The symptoms were unpredictable and he would experience improvement only to suffer from fatigue and exhaustion again;
- The claimant’s payment of sick pay from his employer ceased around June 2021;
- Two Occupational Health reports stated he was fit to return to work and that the disability provisions of the Equality Act 2010 were unlikely to apply, but he continued to be fatigued and did not return to work, even after his sick pay had run out;
- The employer dismissed Mr. Burke in August 2021 because of ill-health and the employee brought disability discrimination claims, among other claims.
The tribunal considered whether the employee was ‘disabled’ under the Equality Act 2010 and concluded that he was. It took the view that he was not exaggerating his symptoms and had post-viral fatigue syndrome caused by COVID-19, which was a physical impairment that had a substantial adverse effect on his ability to carry out normal day-to-day activities. This effect was more than minor or trivial and it was long-term because it "could well" last for a period of 12 months when viewed from the dismissal date (the last alleged discriminatory act). The tribunal noted that the employer's own view was that there was no date when a return to work seemed likely.
Key points for employers
Employers may have employees claiming to suffer from long COVID and should be aware that there is the potential for long COVID symptoms to be classed as a disability. They should consider what practical steps they can take to best support their employees and to protect themselves against disability discrimination claims.
- Employers should be aware of the effects of long COVID and should encourage employees to have open and honest conversations about their health and fitness for returning to work.
- The question of whether symptoms are a disability under the 2010 Act must be assessed in each case on its own merits; it is a legal test not a medical one and we will see lots of cases where this is in issue.
- This case highlights to employers that good absence management procedures should be in place in all cases for long-term health conditions. Where a return to work is potentially possible, it is important for employers to take occupational health advice in order to consider whether there are any reasonable adjustments that could be implemented to help facilitate this if the symptoms are likely to be a disability.
- Employers should also consider sufficiently training or upskilling their managers to engage effectively at an early stage and with a view to supporting recovery and avoiding claims. The training should set out how best to handle sensitive conversations about health and how to manage absence and return to work. Ensure managers are trained on relevant policies, such as equal opportunities, reasonable adjustments, disability or sickness absence policies, and understand them.
- We recommend obtaining medical opinion on factors such as the nature of the condition, its effects, prognosis for recovery and the likelihood of recurrence which may assist in deciding whether a person’s condition will be a qualifying disability.
- In terms of the management of an employee’s absence, employers should consider absence triggers. If an employee has a disability, reasonable adjustments need to be considered but equally, the reasonable adjustments need to be effective in dealing with the particular disadvantage suffered. A failure to make reasonable adjustments is unlawful disability discrimination in terms of sections 20 and 21 of the Equality Act 2010.
Employers should seek medical advice, act reasonably on the advice and information available, just as you would with any other long-term condition.
Although Employment Tribunal decisions are not binding on subsequent Tribunals and each case turns on its own specific facts, this judgment provides helpful clarity to employers about factors to consider as they continue to navigate their way out of the effects of the pandemic.
It will be interesting to see whether this ruling will result in a spike in tribunal claims brought by those who feel they have been treated unfairly as a result of having long COVID. Employers may see continuing numbers of employees diagnosed with long COVID and will need to consider how best to manage, support and accommodate them.
If you have any further queries about what this could mean for your business, please contact our specialist Employment Law team.