07 July 2022

Many employers are concerned about the potential implications of a recent Employment Tribunal case which held that an employee with long Covid was disabled for the purposes of the Equality Act 2010.

The case of Burke v Turning Point Scotland was widely reported in the media, on some occasions with misleading headlines. Remziye Aldogan looks at the issues.

While some illnesses such as cancer, HIV and Multiple Sclerosis are automatically deemed a disability under the Equality Act, long Covid is not one of them. The reported case is an example of a situation where an Employment Tribunal may find that a long Covid is a disability. In this instance the Tribunal had taken into consideration various factors including:

  • The employee tested positive for Covid in November 2020.
  • If they suffered symptoms of fatigue and headaches.
  • The symptoms presented after carrying out small day-to-day activities such as showering and dressing.
  • If they could not undertake household activities.
  • They were still suffering the symptoms at the time of his dismissal in August 2021; and their health started improving in January 2022 but had ongoing fatigue and sleep disruption.

As with any potential disability, in long Covid cases, the Tribunal will look at the facts and circumstances of each particular case.

The Tribunal’s test to assess if an employee is disabled for the purposes of the Equality Act is:

  • Whether the employee has a physical or mental impairment; and
  • Whether that impairment has a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities.

The impairment will likely be considered to have a long-term effect if it has lasted or is likely to last at least 12 months. Employers should therefore consider what steps they can take to protect themselves against disability discrimination claims including failure to make reasonable adjustments. Some of the key steps will include:

  • Communication with employees about the nature of their symptoms and how those impact their day-to-day life and work.
  • Consideration and discussion with the employee as to whether there are any reasonable adjustments that can be made to assist the employee in their work or support their return to work.
  • Consideration of whether it is necessary or advisable to obtain medical input from health specialists including Occupational Health therapists.
  • Seeking advice and guidance from legal professionals specialising in employment law at the earliest opportunity. This is particularly important as the decision in Burke demonstrates that a Tribunal may reach the opposite conclusion to medical specialists as to whether the legal definition of disability has been established.

A careful and comprehensive approach needs to be taken in cases of sickness and disability, looking at all the facts of the case.

For more information contact a member of the employment team at Battens - Remziye Aldogan on 01935 856164 or Dawn Gallie on 01935 846233