An employment tribunal has held that an employee with symptoms of long COVID was protected by disability discrimination legislation.

THE FACTS

Mr Burke was employed for twenty years by Turning Point Scotland. In November 2020, he tested positive for COVID-19. His initial symptoms were fairly mild, but after his period of self-isolation had ended, he developed severe headaches and fatigue. The effects of Mr Burke’s symptoms, which fluctuated in severity, included disruption to his sleep, having to lie down after showering and dressing, no longer performing household chores due to fatigue, difficulty walking to the local shop, impaired concentration and joint pain. He suffered from headaches, and sometimes did not feel well enough to socialise or attend important events, such as a family funeral and Christmas celebrations.

Mr Burke was signed off sick by his GP, having attended telephone consultations. His employer referred him to Occupational Health (OH) in April 2021, and the OH advisor noted that his fatigue had decreased and that he was keen and medically fit to return to work. He did not, however, return to work, having suffered an exacerbation of his symptoms. He attended another OH assessment in June 2021, and the OH advisor reported that his symptoms were in keeping with normal daytime sleepiness and were not of significant medical concern. Mr Burke did not return to work, and Turning Point terminated his employment with effect from 13 August 2021. The letter of dismissal stated that, in Turning Point’s view, Mr Burke was too ill to return to work, that there appeared to be neither anything further that could be done to adjust his duties or work environment that would make his return more likely, nor a potential date on which there was a likelihood of him being able to return to full duties in the future.

Mr Burke claimed in the Scottish employment tribunal that he had been unfairly dismissed and that he had suffered disability discrimination. At a preliminary hearing to determine whether long COVID was a disability within the definition in the Equality Act 2010, the tribunal held that Mr Burke’s impairment was a disability. At the date of his dismissal, his symptoms could well be expected to last as long as a year and this was reflected in the wording of the dismissal letter. As such, the impairment was long term and satisfied the definition of disability in the Equality Act 2010.

WHAT DOES THIS MEAN FOR EMPLOYERS?

Long COVID is not automatically a disability under the Equality Act 2010. Whether or not long COVID amounts to a disability will depend on the facts of every case.

Where employees assert that they are suffering from long COVID, employers should make a careful assessment of whether the employee may be disabled so that they can comply with obligations to make reasonable adjustments and ensure that any detrimental action (for example, performance management where their performance may be impacted by long COVID) taken against the employee can be objectively justified to defeat any additional or alternative claims of discrimination arising from disability.

Mr T Burke v Turning Point Scotland