In Burke v Turning Point Scotland, a Scottish employment tribunal has found that an employee suffering with symptoms of long Covid was disabled for the purposes of the Equality Act 2010 (“EqA”) and therefore could proceed with a disability discrimination claim.
Mr Burke had been employed by Turning Point Scotland as a caretaker for over 20 years. In November 2020 he caught Covid and started suffering with serious fatigue, severe headaches, joint pain and insomnia. His symptoms meant that he could not undertake ordinary household tasks (such as cleaning, ironing or cooking) and he would need to lie down and rest after waking, showering and dressing. He obtained fit notes from his doctor stating that he had post-viral fatigue syndrome and was suffering with fatigue and after effects of long Covid.
In April and June 2020 Turning Point obtained occupational health reports which suggested that Mr Burke was well enough to return to work and was unlikely to be disabled for the purposes of the EqA.
Mr Burke did not return to work because he found the effects of long Covid kept returning. He was eventually dismissed on grounds of ill-health in August 2021 and brought a claim for disability discrimination. A preliminary hearing was held to decide whether he was disabled for the purposes of discrimination law.
A person is deemed disabled under the EqA 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. The tribunal found:
- he had a physical impairment (long Covid and post-viral fatigue syndrome);
- his physical symptoms 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.
Therefore, the conclusion was that Mr Burke was disabled and could proceed with his claim.
Consequences of the decision
This decision does not mean that every long Covid sufferer will be disabled as each case will turn on its own facts. However, long Covid may amount to a disability, so employers should bear this in mind in their approach to employees suffering from this condition and should take appropriate steps to reduce the risk of discrimination (for example by considering reasonable adjustments and ensuring that any detrimental action taken against the employee can be objectively justified).
The case also highlights the dangers of over-reliance on occupational health reports. Although they can be useful and informative, they are not legally determinative of whether a person is disabled or not.
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