Long Covid was first identified following the first wave of Covid-19 infections in 2020. The latest data from the Office for National Statistics estimated two million people were experiencing self-reported long Covid symptoms as of 1 May 2022. The TUC recently called for long Covid to be recognised as a disability. However, in May this year, the Equalities and Human Rights Commission tweeted that “Without case law or scientific consensus, EHRC does not recommend that ‘long Covid’ be treated as a disability.”
The EHRC’s view may change after a recent employment tribunal case has determined that an employee with long Covid was disabled within the meaning of the Equality Act 2010 (“EqA 2010”).
By law, a disability is a physical or mental impairment that has a ‘long-term and substantial adverse effect’ on a person’s ability to do normal day-to-day activities.
‘Long term’ means either:
- it will affect them or is likely to affect them for at least a year
- it’s likely to last for the rest of their life
‘Substantial adverse effect’ means more than just a minor impact on someone’s life or how they can do certain things. This may fluctuate or change and may not happen all the time.
In the case Burke v Turning Point Scotland, Mr Burke was employed by Turning Point as a caretaker from April 2001. In November 2020, he tested positive for COVID-19. Initially, his symptoms were mild. However, after isolating, he developed severe headaches and fatigue. After waking, showering and dressing, he had to lie down to recover and struggled standing for long periods. He could not undertake household activities, like cooking, ironing and shopping. He experienced joint pain, a loss of appetite, a reduced ability to concentrate and difficulties sleeping. He also felt unable to socialise. The symptoms were unpredictable; he would experience improvement only to suffer from fatigue and exhaustion again.
From January 2021, his health began to improve. However, sleep disruption and fatigue continued to affect his day-to-day activities.
Mr Burke remained off work from November 2020. Later fit notes referred to the effects of long Covid and post-viral fatigue syndrome, however, and in a point that is hugely relevant for employers, two Occupational Health reports stated he was fit to return to work and that the disability provisions of the EqA 2010 were unlikely to apply. However, relapses of his symptoms (in particular, fatigue) meant that he did not return to work. He was dismissed in August 2021 because of ill health and brought disability discrimination claims, among other claims.
As a preliminary issue, a tribunal had to determine whether Mr Burke was disabled during the relevant period. It concluded that he was. It considered that he was not exaggerating his symptoms and had a physical impairment (post-viral fatigue syndrome caused by COVID-19), noting that there was no incentive for him to remain off work when he had exhausted sick pay. His varying symptoms were consistent with a June 2021 TUC report on the effects of long Covid. The physical impairment had an adverse effect on his ability to carry out normal day-to-day activities. This effect was more than minor or trivial and long term because it “could well” be that it would last for a period of 12 months when viewed from the dismissal date, therefore meeting the definition of disability.
Although the Buke case is a non-binding ET decision, and particularly fact specific, it highlights some of the difficulties of dealing with long Covid. The fluctuating nature of the condition and the disparity of symptoms among sufferers makes it unlikely to ever be a “deemed disability” under the Act in the way that cancer, multiple sclerosis, blindness and a number of other conditions are. Two occupational health reports in this case indicated that the employee was unlikely to be disabled, but employers need to consider the full picture not automatically accepting occupational health advice.
Employers must apply the same considerations to employees with long Covid as they would to those with any type of long-term medical condition. That means making sure they have comprehensive policies governing absence, sickness and long-term sick leave in place, and apply these consistently throughout their staff.
We are likely to see more cases over the coming months in relation to long Covid, so we will keep you updated on these developments. If you wish to discuss this issue, then please get in touch with Marianne McJannett at Bellwether Green: marianne.mcjannett@bellwethergreen.com
