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29th June 2022

Long COVID As A Disability

Man sat on a bed suffering from fatigue

An employee with a disability will qualify for protection against discrimination if they have a protected characteristic. Under section 6 Equality Act 2010 for an employee to qualify as having a disability if they:

  1. Have a physical or mental impairment, and 
  2. The impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. 

This month, the case of Burke v Turning Point Scotland ETS/4112457/2021 set a precedent in the Scottish Employment Tribunal where it was held that an employee suffering from Long COVID was disability within the meaning of Section 6 Equality Act 2010 and was therefore eligible to pursue a disability discrimination claim against his employer. 

Mr Burke was employed as a caretaker for Turning Point with around 20 years of continuous employment. In November 2020, Mr Burke tested positive for COVID-19 and did not return to work as a result of his symptoms. In April 2021 and June 2021 Turning Point obtained two occupational health reports which suggested that Mr Burke was ‘unlikely’ to qualify as disabled. In June 2021, Mr Burke was exhausted and was dismissed on the grounds of ill-health in August 2021. 

The symptoms Mr Burke experienced included: headaches, fatigue, loss of appetite, joint pain, difficulty sleeping and exhaustion preventing him from standing for long periods of time. Prior to contracting the virus, he would often help around the house, cooking, cleaning, and ironing but was unable to complete these activities due to his symptoms. 

The tribunal held that Mr Burke had a physical impairment which 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 would last longer than 12 months.

Employers should ensure that these employees are managed properly and that any reasonable adjustments are accommodated. It may be of assistance to seek medical advice on an employee’s condition and the effect on their work so this can be managed appropriately. 

It should be noted, that whilst this decision sets a precedent, this decision is not binding and therefore other tribunals can depart from this decision. Given that Long COVID is becoming more prevalent in society these issues are likely to arise. The fact that a person has symptoms of Long COVID does not automatically qualify them as disabled, but rather they must satisfy the test under section 6 Equality Act 2010. 

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