Long Covid: what tribunal’s disability ruling means for HR

Whether long Covid is a disability has been seen as a grey area. However, a recent tribunal ruling could be good news for employees who claim they have suffered discrimination because of their lingering Covid symptoms. Richard Fox and Özlem Mehmet explain what the ruling means.

This week, in Burke v Turning Point Scotland, the Scottish Employment Tribunal ruled that an individual suffering from long Covid was “disabled” for the purposes of the Equality Act 2010 and could therefore bring a disability discrimination claim against his former employer.

Although a first-instance decision, which is not binding on other tribunals, it will be interesting to see whether this ruling will result in a spike in tribunal claims brought by those who feel they have been treated unfairly as a result of having long Covid.

Facts of the case

The claimant, Mr Burke, was employed as a caretaker/security by Turning Point Scotland, a charity supporting those in need (including those with disabilities) for about 20 years.

Burke first contracted Covid in November 2020 and never returned to work. His initial Covid symptoms were very mild and flu-like, however, after the isolation period, he developed severe headaches and symptoms of fatigue. His symptoms meant he would:

• need to lie down and rest from fatigue and exhaustion after waking, showering and dressing
• be unable to perform household chores he was accustomed to helping out with, such as ironing, shopping and cooking meals
• be unable to walk to his local shop to buy the newspaper (as he used to do)
• have joint pain in his arms, legs and shoulders, together with a loss of appetite and inability to concentrate, and
• have a disturbed sleep pattern.

Burke felt better on some days than others and this unpredictability also made him anxious. He obtained fit notes from his doctor throughout his absence (mainly after telephone consultations with his GP due to the restrictions on in-person consultations) citing “fatigue”, “after effects of long Covid” and “post viral fatigue syndrome”.

Two occupational health reports were obtained by Turning Point, one in April 2021 and the other in June 2021. Both reports concluded that it was “unlikely” that the disability provisions of the Equality Act 2010 would apply to Burke.

Burke was dismissed on grounds of ill health in August 2021, having exhausted his entitlement to sick pay around June 2021.

He brought a number of claims against Turning Point, including for disability discrimination. Turning Point sought to have the disability discrimination claim struck out on the basis that his condition did not constitute a “disability” under the Act. A preliminary hearing was held to determine this point.

Was Burke disabled under the Equality Act 2010?

There are certain conditions (such as cancer or HIV) which are automatically classified as a “disability” under the Act. Long Covid is not such a condition, so whether it amounts to a disability is based on whether it meets the legal definition of disability.

A person is deemed disabled under the Act if they suffer from a physical or mental impairment which has a substantial (i.e. more than minor or trivial) and long-term effect (has lasted or is likely to last at least 12 months) on their ability to carry out normal day-to-day activities.

In its judgment, the tribunal referred to the TUC’s report, Workers’ experience of long Covid and noted its finding that fatigue is the most common symptom of long Covid, although issues concerning concentration, joint pain, muscle pain and headaches were also mentioned. The report had also found that roughly 29% of respondents experienced symptoms for 12 months or more and that symptoms varied over time (becoming worse on some days than others).

Applying the principles to Burke, the tribunal found that:

• he had a physical impairment (long Covid/post-viral fatigue syndrome) and his fluctuating symptoms were consistent with the TUC report.
• he was not exaggerating his symptoms,as Turning Point had suggested. There was no incentive for him to remain off work when he had exhausted sick pay and the fact that he had been employed for 20 years did not suggest that he was likely to be pretending to be unfit for work.
• the fact that there was no particularisation of symptoms in some of the GP notes, due to the severe restrictions on face-to-face meetings with GPs at the time, did not mean that those symptoms did not exist. The essential diagnosis was “post viral fatigue syndrome” caused by Covid-19
• his physical impairment had an adverse effect on his ability to carry out normal day-to-day activities, and
• 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, which was the last alleged discriminatory act.

Key take-aways for employers

• Long Covid may amount to a disability, so employers should bear this in mind in their approach to employees suffering from this condition. However, it is not a condition that is automatically deemed to meet the definition of disability, so the sequential steps in determining this question should be followed.
• Although each case will turn on its own facts, the principles laid out in this judgment would seem to apply in many cases involving long Covid. The factual matrix of this case was not particularly unusual.
• Occupational health and other medical reports are helpful in understanding an individual’s diagnosis and prognosis but are not determinative of whether a person’s condition constitutes a disability. That is a legal question to be determined by the tribunal and, as in this case, tribunals will not be beholden to the views expressed by the medical professionals. Opinions as to disability expressed in medical reports should, therefore, be treated with caution.
• Think about whether and, if so, what reasonable adjustments may be appropriate to help employees suffering from long Covid. This is difficult given the fact that we are still on a learning curve with regard to this condition and the wide variety of symptoms it may cause. However, it is now clear that long Covid is a genuine condition and employers will need to be sensitive to this. Keeping an open mind and engaging in dialogue with employees will be key.

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