Burke v Turning Point Scotland ETS/4112457/2021 (27 May 2022)
In this case, the Employment Tribunal ("ET") held that an employee with long COVID symptoms qualified as disabled for the purposes of the Equality Act 2010 ("EqA").
The Claimant was employed by the Respondent as a caretaker and had close to 20 years’ service. In November 2020, he contracted COVID-19, and only experienced mild symptoms. However, he began to develop headaches and chronic fatigue. For example, he had to lie down to recover after walking, showering, or getting dressed, and could not carry out normal household activities, such as cooking or shopping. He also experienced joint pain, loss of appetite, a reduced ability to concentrate and sleeping difficulties. He was off work on sick leave from November 2020. An occupational health report prepared in April 2021 stated that the Claimant was fit to return to work and that the disability provisions of the EqA were unlikely to apply. However, the Claimant did not return to work because he found the effects of long COVID kept returning. These symptoms would improve marginally, and then return to being extremely debilitating. A further occupational health report, prepared in June 2021, noted that the Claimant was experiencing daytime fatigue, but again indicated that it was unlikely he was disabled within the scope of the EqA. GP notes covering the Claimant’s absence did not provide details of his illness.
The Claimant was dismissed on 13 August 2021 for capability reasons. He brought disability discrimination claims against the Respondent, and the ET had to determine whether the Claimant was disabled within the meaning of the EqA during the period from November 2020 to August 2021.
The ET held that the Claimant gave credible evidence about his illness, and that as sick pay had ended in June 2021, there was no financial incentive for him to exaggerate his symptoms in order to get more time off. He had also been employed by the Respondent for 20 years; in light of this the ET considered that it was unlikely he was pretending to be unfit for work when he was not. The Respondent had written that the Claimant was "too ill to return to work" in its dismissal letter to him, which reinforced the view that the Claimant’s account was credible, and that he was ill for the entire period from November 2020 to August 2021. The ET held that the symptoms the Claimant was experiencing did prevent him from carrying out daily activities, so in his case, post-viral fatigue syndrome, or long COVID, fell within the definition of a disability under the EqA.
This case highlights that long COVID can potentially be considered a disability under the EqA, provided that it meets the threshold of an impairment which has a substantial and long term (more than 12 months) adverse effect on an individual’s ability to carry out day to day activities. With June 2022 ONS statistics suggesting that 2 million people in the UK are suffering from symptoms of long COVID, many employers will need to tackle issues related to this condition in the coming months and potentially years. The case also highlights the dangers of over-reliance on occupational health reports in support of an argument that someone is not disabled within the scope of the EqA: all of the circumstances, including the employee’s own evidence of the impact of an impairment, will be taken into account by tribunals when determining the question of disability.