Recent ONS estimates suggest that around 2 million people (3.1% of the UK’s population) have symptoms of long-COVID, with the most common symptoms being fatigue, shortness of breath, coughs and muscle aches.
As more care staff are reporting symptoms of long-COVID, we are increasingly being asked whether long-COVID amounts to a disability and trigger additional legal responsibilities for care providers, such as the duty to make reasonable adjustments.
In a recent Employment Tribunal case in Scotland, the tribunal was asked to determine whether an employee with long-COVID was disabled.
What is a ‘disability’?
The Equality Act 2010 defines a disability, in section 6(1), as where a person:
“has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”.
Can long-COVID be a disability?
In the case of Burke v Turning Point Scotland  5 WLUK 490, Mr Burke, who had been employed by Turning Point Scotland as a caretaker for almost 20 years, tested positive for COVID-19 in November 2020. Initially, his symptoms were mild, but they developed into severe headaches and fatigue. He also experienced severe joint pain, a loss of appetite, reduced concentration and difficulties sleeping. He remained off work, with fit notes describing the reason for his later absences as long-COVID.
Mr Burke’s condition improved, with two Occupational Health reports stating that he was fit to return to work, and that his condition was unlikely to satisfy the statutory definition of a disability in the Equality Act 2010. Unfortunately, relapses of his symptoms meant Mr Burke did not return to work and was subsequently dismissed in August 2021. Mr Burke brought several claims, including a claim for disability discrimination.
At a preliminary hearing, the tribunal had to determine whether Mr Burke was disabled. Applying the statutory test, the Tribunal found that Mr Burke had a physical impairment caused by COVID-19 (long COVID/post viral fatigue syndrome) which had an adverse effect on his ability to carry out normal day-to-day activities (cooking, ironing, walking to the nearby shop, sleeping and concentrating for any length of time). This effect was more than minor or trivial and was long term as it was likely to last for at least 12 months. The Tribunal therefore determined that his long-COVID amounted to a disability.
What does this mean for you?
This is a first-instance decision, which means it is not binding on subsequent cases and it does not set a general rule that long-COVID will amount to a disability. Whether or not it amounts to a disability will need to be assessed on the facts of each case, applying the statutory definition in the Equality Act 2010.
However, it is possible that this ruling could result in a spike in tribunal claims from workers suffering from long-COVID who believe that they have been subjected to unfavourable treatment (e.g. dismissal or a warning) because of something arising in consequence of it (e.g. poor attendance or performance), or that their employer has failed to make reasonable adjustments.
The case also highlights the importance of obtaining up to date Occupational Health guidance before taking the decision to dismiss, as it is possible that the workers medical position will have changed, sometimes significantly.
We can help
Managing sickness absence and disability related issues can be tricky, but we are here to help you if you need it, with significant experience of advising on these issues in practice.