The recent case of Burke -v- Turning Point Scotland has found that an employee suffering from long Covid was in fact disabled for the purpose of the Equality Act 2010.
In May 2022, the Equalities and Human Rights Commission made a statement in respect of long Covid whereby they stated: “Discussions continue on whether ‘long Covid’s symptoms constitute a disability. Without case law or scientific consensus, EHRC does not recommend that ‘long Covid’ be treated as a disability.”
Naturally, this statement caused numerous groups and advocates to raise their concerns about the effect that this could have on employers and the way in which they treat long Covid.
Ultimately, it will be for the Employment Tribunal to assess whether or not an individual’s long Covid would amount to a disability. Section 6 of the Equality Act 2010 outlines that a person has a ‘disability’ if they have:
- A physical or mental impairment; and
- It has a ‘substantial’ and ‘long-term’ adverse effect on the ability to carry out normal day-to-day activities.
It is likely that most individuals would be able to show that their condition would amount to an impairment that affects their normal day-to-day activities, however, they would also need to show that it was a substantial effect and the long term. There is difficulty in ascertaining the long-term nature of long Covid as the condition is so new that there is little medical understanding or knowledge as to how long it will last.
Notwithstanding the above, the case of Burke -v- Turning Point Scotland has shown that long Covid can amount to a disability for the purposes of the Equality Act 2010. Mr Burke was dismissed due to capability, having been on long-term sick leave with long Covid. Mr Burke’s symptoms included fatigue, severe headaches, and difficulty sleeping. The Tribunal found in this case that Mr Burke did suffer from a disability for the purposes of the Equality Act 2010.
The finding serves as a reminder for employers that they should not make assumptions that long Covid is not a disability and ensure they handle any sickness absence with care and ensure correct procedures and consideration are given to ensure that they do not discriminate against individuals.
The other impact this case may have is that we may now see an increase in discrimination claims being brought as a result of long Covid. Firstly, due to the findings within this claim, people may feel encouraged to pursue claims where they feel discriminated against due to suffering from long Covid. Secondly, as time passes from the peak of the pandemic, there is likely to be an increased number of individuals suffering from long Covid symptoms and therefore further potential for cases of discrimination to arise.
Samuel Gray is an employment solicitor with DPH Legal. Samuel also has exceptional experience on a full range of employment law matters for both employees and employers. Samuel is a member of The Law Society, The SRA and the ELA. To contact Samuel, visit the Contact Us page. For media enquiries: firstname.lastname@example.org