Is Long – COVID a disability for the purposes of the Equality Act 2010?

In the case of Burke v Turning Point Scotland, an Employment Tribunal (“Tribunal”) has had to consider for the first time whether Long – COVID can meet the definition of a disability under section 6 of the Equality Act 2010 (EA 2010).

Background

Mr Burke (“the Claimant”) had worked for Turning Point Scotland (“the Respondent”) since 2001 as a caretaker. The Claimant developed COVID – 19 in November 2020. After a period of isolating, and experiencing mild symptoms, he developed severe headaches and fatigue. The Claimant would require a rest after waking, washing and dressing. Standing for long periods proved difficult. The Claimant could no longer perform jobs around the house because of his lack of energy. He experienced joint pain in his arms, legs and shoulders as well as a loss of appetite. The Claimant suffered difficulties with his sleep pattern and with socialising. These symptoms were unpredictable, whereby improvement would be made for a period before experiencing the same symptoms again. Some of his symptoms began to improve in January 2022, but fatigue and sleep problems persisted.

The Claimant remained off work from November 2020 until he was dismissed by reason of ill health in August 2021. The Claimant provided fit notes during his absence which diagnosed Long – COVID and post – viral fatigue syndrome. However, two occupational health reports obtained by the Respondent stated that the Claimant was fit for work and that his symptoms would not be considered a disability under the EA 2010. Relapses of the Claimant’s symptoms prevented him from returning to work before his dismissal.

The Claimant brought disability discrimination claims against the Respondent. It was agreed that a preliminary hearing in this dispute would consider the issue of whether the Claimant was disabled for the purposes of the EA 2010.

The Law

Disability is defined in section 6 of the EA 2010 as “a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”. An impairment will only have a “long-term” effect if it meets the criteria in Paragraph 2 of Schedule 1 of EA 2010: “it has lasted for at least 12 months, it is likely to last for at least 12 months, or it is likely to last for the rest of the life of the person affected.” For the purposes of this definition, if an impairment ceases to have the effect described above, it will nevertheless be “treated as continuing to have that effect if that effect is likely to recur.

Decision

The Tribunal determined that the Claimant was disabled for the purposes of the EA 2010. It was held that the Claimant likely had a physical impairment. The Claimant had three telephone consultations with GPs during the period in question where he explained the symptoms he was suffering from, and while there was a lack of particularisation of these symptoms within the fit notes, this was not persuasive to the Tribunal that these symptoms were not present. An occupational health report in June 2021 deemed the Claimant fit for work but the Claimant advised that the symptoms had returned. There was no credible explanation as to why the Claimant would pretend that he suffered only minor symptoms up to the end of June 2021 before saying more significant symptoms returned such to prevent him returning to work. In addition, the Claimant’s sick pay expired in June 2021, and he had not claimed any benefits meaning there was no incentive for him to remain off work. The Claimant had a long period of continuous service, and it was unlikely that he would be feigning an illness.

The Tribunal also accepted, based on the Claimant’s evidence, that the impairment had an adverse effect on his ability to carry out normal day-to-day activities and that the impact was substantial.

In considering whether the impacts of long – COVID would be long-term, the Tribunal had to consider whether the symptoms were likely to recur. Applying the standard in SCA Packaging Ltd v Boyle, the test for was whether “it could well happen” that the symptoms recur, not whether it was more likely than not that this would happen. In doing so, it was agreed that at the point at which the Claimant was dismissed, the Respondent was not certain when the Claimant would be able to return to normal duties. Therefore, it could well happen that the condition and its substantial effects would last until November 2021, a year after they started, meaning that the substantial adverse effects were in fact “long term”. Overall, this meant that the Claimant was disabled at the time that the alleged discriminatory acts took place.

Comment

It should be noted that the finding that this individual’s Long – COVID met the statutory definition of a disability will not mean that every case of Long – COVID will be deemed a disability. Nor has it been decided yet whether any disability discrimination actually occurred in this case. However, this is the first instance of a Tribunal concluding that Long – COVID could constitute a disability under the EA 2010. It is also a reminder for employers that the question of whether an illness constitutes a disability under the EA 2010 is a legal question and not one that is decided by an occupational health report.

The Equality and Human Rights Commission (EHRC) caused controversy in May when it tweeted that without case law on this subject, it could not recommend treating Long – COVID as a disability. This was later equivocated to the more neutral advice that “employers [should] continue to follow existing guidance when considering reasonable adjustments for disabled people and access to flexible working, based on the circumstances of individual cases”. The decision in this case adds credence to the view that employers should be wary of the possibility that their staff who have Long – COVID may be disabled and should consider their duties under EA 2010.

Case reference: Burke v Turning Point Scotland [2022] 5 WLUK 490

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