27th September 2022
Disabled At The Relevant Time?
In order for an employee to fall under the protection of disabled under the Equality Act 2010, they must be disabled at the time of the discriminatory act. In the recent case of Quinn v Sense Scotland ETS/4111971/2021, the tribunal confirmed that an employee who caught COVID-19 two weeks before their dismissal was not disabled at the relevant time.
The Claimant (Mrs Quinn) was employed as head of people for the Respondent (Sense Scotland). On or around 11 July 2021 the Claimant tested positive for COVID-19 which led her to experience the following symptoms: fatigue, shortness of breath, headaches, brain fog, pain and discomfort. These symptoms affected her day-to-day activities as she struggled with shopping, driving, disrupted sleep and stopped socialising and exercising. However, at this time the Claimant was not diagnosed with Long Covid but rather her positive COVID-19 result.
On 27 July 2022, the Claimant was dismissed from her employment. From 2 August 2022, the Claimant was deemed unfit to work due to her Covid symptoms. On 12 September 2022, the Claimant was declared unfit to work by her GP due to post-COVD-19 symptoms and diagnosed with Long Covid.
The Claimant brought claims against the Respondent for a number of claims including direct disability relying on her diagnosis of Long Covid and normal Covid-19 symptoms. The Claimant argued that COVID-19 and Long Covid are part of the same condition.
As a preliminary issue, the tribunal considered whether the Claimant was disabled at the time of her dismissal. The Tribunal held that the Claimant was not disabled under the Equality Act 2010 at the time of her dismissal. The reason for this is that the Claimant was not diagnosed with Long Covid until 6 weeks after her dismissal and therefore was not disabled at the relevant time. Whilst the Claimant did have COVID at the time of her dismissal, this does not suggest that she would have Long Covid as the majority of people who catch COVID-19 do not develop Long Covid.
This case is an example that it is imperative for a disability discrimination claim for the employee to establish whether they were disabled at the relevant time. However, should an employee be absent for a longer period than two weeks with COVID-related symptoms, an employer should be careful when dismissing an employee without giving thought to whether the employee is disabled.