Long Covid – a turning point in Tribunal claims?

This guest post was written by Richard Fox, a Senior Consultant and Özlem Mehmet, a Professional Support Lawyer, in the Employment department at Kingsley Napley LLP.

It was adapted from an article originally published in Personnel Today on 23/06/22

There has been a very interesting decision of the Scottish Employment Tribunal that has recently ruled that an individual suffering from Long Covid was “disabled” for the purposes of the Equality Act 2010 (the “Act”) and could, therefore, proceed to bring a disability discrimination claim against his former employer (Burke v Turning Point Scotland 4112457/2021).

Although technically this is a decision of the Tribunal, and not an Appeal Tribunal, and is therefore not formally “binding” on other Tribunals, it will be very interesting to see whether it will nonetheless result in more claims being brought by those who feel they have been treated unfairly by their employer 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 for approximately 20 years.

Mr 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.

Mr Burke felt better on some days than others and this unpredictability also made him anxious.

Mr Burke 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 Act would apply to Mr Burke.

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

Mr Burke 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 Mr Burke’s condition did not constitute a “disability” under the Act. A preliminary hearing was held to determine this point.

The legal position and Tribunal’s reasoning

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. That being 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 this case the Tribunal found that:

• Mr Burke had a physical impairment (Long Covid / post-viral fatigue syndrome) and his fluctuating symptoms were consistent with the findings of the TUC report, “Workers’ experience of Long Covid”;

• he was not exaggerating his symptoms (as Turning Point had suggested);

• the fact that Mr Burke’s symptoms were not set out in detail 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 (the last alleged discriminatory act).

Key take-away points

• Although not automatically deemed to be a disability under the Act, Long Covid may amount to a disability for these purposes.

• 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. There was nothing particularly unusual about this case. This decision may therefore be of significant interest to those who suffer from Long Covid and are facing discrimination/unfair treatment at work specifically because of this condition.

Photo courtesy of Personnel Today