Long Covid – Is it a disability?

In a landmark case, a charity caretaker established that the symptoms of long Covid amount to a disability.

An employment tribunal earlier this year has begun resolving the case of Mr T Burke, who was dismissed by his employer Turning Point Scotland on the grounds of ill health.

Burke had been unable to work for up to nine months as a result of suffering from the long-term side effects of Covid-19, which he contracted in November 2020.

The tribunal heard that after his initial illness, Burke had suffered from severe headaches and fatigue, which got so bad that after he had woken up, showered and dressed he would have to rest due to exhaustion.

Burke showed that he could not work for even short periods without rest and that he had stopped many of the regular functions of his daily life, such as walking to his local shop for a newspaper.

He also experienced joint pain in his arms, legs and shoulders, difficulty sleeping, problems concentrating, and he lost his appetite.

The tribunal also heard that his illness was so severe that he had stopped socialising and attending important occasions, including his own uncle’s funeral.

His GP, following several consultations, diagnosed Burke with post-viral fatigue syndrome and provided several sick notes.

Burke did not work for the nine months between testing positive for Covid and his dismissal, but he had continued to engage with his employer.

He had a telephone consultation with occupational health (OH), which concluded that he was “medically fit to return to work” and that his illness was unlikely to amount to a disability provision in the Equality Act 2010.

As a result of these findings and Burke’s inability to return to work, Burke was dismissed on 13 August 2021 on grounds of ill health.

Following his dismissal, Burke launched a case against his employer claiming that he was unfairly dismissed and discriminated against based on a disability and his age.

This tribunal is yet to fully conclude, however, Employment Judge J D Young found that Burke’s condition had a “long-term substantial adverse effect and that it had “an adverse effect on day-to-day activities”. As a result, he ruled that Burke’s long Covid did amount to a disability under the Equality Act.

This is likely to be the first of many similar cases in which a person has been dismissed due to the symptoms of long Covid and employers need to consider these findings when supporting employees experiencing this illness.

It is worth reviewing your procedures for sick leave and support to make sure they reflect the outcome of this case.

If you have any queries about this case or how it might impact you, please speak to us today.

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