Employee with long-Covid was disabled under the Equality Act 2010

The case of Burke v Turning Point Scotland is one of the first cases to address the question of whether an employee with long-Covid can be protected as a disabled person under the Equality Act 2010. 

The Law

The definition of disability under the Equality Act 2010 has a number of components, each of which needs to be proven in order for an employee or worker to be protected as a “disabled person”. 

To have a disability, an employee must show that they have a:

1. Physical or mental impairment;
2. The impairment must have lasted or be likely to last more than 12 months; and
3. It must have had a substantial adverse effect on their ability to carry out normal day to day activities at the time of the alleged discriminatory act.

The Facts    

Mr Burke worked as a caretaker for a charity which provided support to people in need across Scotland.   He was employed by the charity for 20 years before he was dismissed in August 2021 for long term sickness absence, the cause of which was that he was suffering from long Covid.        

It was in November 2020 that Mr Burke first caught Covid-19.  He had mild flu-like symptoms at first then started to develop severe headaches, fatigue, and joint pain.  Over the course of the next 9 months, some of Mr Burke’s symptoms improved but others, such as the fatigue, fluctuated.  He would occasionally experience an improvement only to worsen the next day. He reported difficulties standing for long periods, preparing food, walking, concentrating and sleep disruption.  

Mr Burke’s GP notes mentioned that he was suffering from long-Covid symptoms and “post viral fatigue syndrome”.  

Over the course of his absence from work, his employer obtained two Occupational Health Reports but both reports concluded that it was unlikely that he had a “disability”.  However, Mr Burke remained too unwell to return to work and by August 2021, his employer commenced dismissal proceedings.  

On 13 August 2021 he was dismissed on the grounds of ill health on the basis that he  remained too unwell to return to work and his employer did not consider there were any adjustments that could help him return to work nor had they received a potential date when he may be able to do so. 

Mr Burke subsequently brought claims for unfair dismissal and disability discrimination against his former employer.    He claimed that the condition of long Covid amounted to a physical impairment, was one that was likely to last more than 12 months and had a substantial adverse effect on his ability to carry out normal day to day activities.   

Mr Burke’s former employer, however, disagreed and disputed that his long-Covid was a “disability” under the employment law definition.

The Finding

The Employment Tribunal found in favour of Mr Burke.  Although by the time of his dismissal, Mr Burke had not been suffering from long Covid for 12 months, the Tribunal concluded that it was likely that it would last 12 months (and indeed Mr Burke had continued to suffer from the symptoms following his dismissal).   

Furthermore, the Tribunal concluded that his condition did have a substantial adverse effect on his normal day to day activities.    A substantial adverse effect means “more than minor or trivial” and the Tribunal concluded that Mr Burke’s description at the hearing of the effects of his condition on his daily life were certainly more than minor or trivial.  The Tribunal did not agree with Mr Burke’s former employer that he was exaggerating his symptoms but said that Mr Burke’s evidence, as well as his daughter’s evidence, about the way in which he was impacted by his condition, was credible.  Accordingly, the Tribunal held that Mr Burke did indeed have a disability at the time he was dismissed, and he was allowed to proceed with his claims of disability discrimination against his former employer. 

 Points to note

Whilst this is one of the first cases to consider whether long Covid could amount to a disability, the conclusion reached by the Tribunal is not surprising.  The fact that “long Covid” is a relatively “new” illness, was never going to be a bar to qualifying as a “disability” providing all the components of the test are met.  Years ago, there was a need for a condition to be “medically well recognised” in order for it to be considered a disability, but that law was long done away with because it was recognised that not all conditions are easily identifiable nor do all symptoms necessarily coincide with commonly recognised symptoms of a particular illness or condition. 

Action to take

The key take-away points from this case are:

1. Make sure that you maintain regular communication with employees on long term sickness absence.  Employers are sometimes reluctant to do this, often for fear that, by trying to keep in touch, this may somehow hinder the employee’s recovery.   Whilst this may be a concern in cases where the employee alleges that their sickness absence has been caused by the employer, in most situations that will not be the case.  By keeping the dialogue going with the employee they are less likely to feel isolated/that their employer does not care, and it will make approaching issues such as the need to obtain medical/occupational health reports and discussions about returning to the workplace much easier.

2. If an employee has been off work for a long period, it is important to obtain a medical report or occupational health report so that you can be better informed about their illness, how long they are likely to remain off work and what adjustments can be made to facilitate their return.   

3. Make sure you ask the right questions when obtaining a report.   Too often a medical report or occupational health report will be obtained that does not actually tell you what you need to know in order that you can make informed, legally sound, decisions.  This is where it is important to make sure that you ask the right questions and, if in doubt, contact the Real Employment Law Advice team for assistance. 

4. Listen to the employee.    Obtaining a medical or occupational health report is only part of the path to rehabilitating an employee back into work or making decisions about an employee’s ongoing employment.   When you receive a report it is important to discuss the findings with the employee and consult on any recommendations made.   This is particularly important where an employee has a condition where the symptoms fluctuate and are unpredictable (Mr Burke being a case in point) and recommended courses of action (e.g. that an employee is fit to return to work) may no longer be the appropriate ones to take.

If you need advice on what can be one of the trickier aspects of managing staff, please get in touch with one of the team at Real Employment Law Advice.

Case reference: Burke v Turning Point Scotland ETS/4112457/2021