The snowball effect of COVID has left the some members of the population sniffing and coughing for much longer than the 10 days previously enforced as the isolation period, as they continue to show symptoms of the viral infection. This condition has known to become ‘long COVID’.

According to the Office for National Statistics, a whopping 2 million people in Britain are suffering from Long COVID. These symptoms include fatigue, muscle aches, coughs and shortness of breath, and no doubt the list will continue to develop. Whilst long covid is a new condition for doctors to contend with, the presence of a sudden continuous viral infection has also left lawyers across the country itching to ask- does Long COVID constitute a disability?

Let’s go back to the drawing board before advancing further on this matter. A disability has been defined in section 6(1) Equality Act 2010 as ‘having a physical or mental impairment and the impairment has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities’. This act protects those deemed disabled, particularly in the workplace.  

We can thank the Employment Tribunal and Mr Terence Burke (Burke v Turning Point Scotland) for their contribution to providing guidance for employers dealing with employees suffering from long covid.

Facts of the Case

Terence Burke had worked for Turning Point as a caretaker since April 2001. Mr Burke contracted COVID in November 2020, rendering him unable to return to work before his dismissal in August 2021.

Mr Burke was signed off due to his inability to complete household chores due to extreme tiredness. His GP later diagnosed him with post viral fatigue syndrome.

Mr Burke’s condition would improve for some time, before worsening again. His fit notes were relatively vague and did not set out his symptoms which were:

• He suffered with intense fatigue which required him to lie down after getting out of bed, showering or getting dressed;

• He could not stand for long periods or walk even for a short time;

• He did not attend social events;He could not perform household chores;

• He also suffered with join pain, sleep disturbances and difficulty concentrating.

The medical evidence to support Mr Burke’s claims was scant and the employer sought two occupational health assessments which declared him fit to work.  Mr Burke was off work from November 2020 to August 2021 with only some improvement to his condition in that time.

Eventually, his employer dismissed him.  The dismissal letter read ‘You remain too ill to return to work and there appears to be nothing further we can do to adjust your duties or work environment’.

Mr Burke challenged this based on disability discrimination, and led courts to grapple whether long COVID truly constituted a disability.

Result of the Case

The Employment Tribunal panel held long COVID did indeed constitute a disability under the definition provided under the Equality Act 2010. Employment Judge, James Young, dilated on this decision confirming Mr Burke’s condition had constituted ‘a long-term adverse effect’ on his ability to carry out everyday activities.

To be clear, this hearing was a decision only as to whether Mr Burke is disabled.  The employment tribunal has not (at least not yet) determined that Mr Burke was unfairly dismissed which is a different question and will include matters such as whether Turning Point Scotland did make reasonable adjustments to the role, and whether they followed a fair process in deciding that Mr Burke was incapable of carrying out his role.

What does this mean?

This case has provided some assistance to solidify the previous grey area surrounding Long COVID and unfair dismissal in the workplace. However, this decision is not set in stone, and can only be attributed as guidance for future cases of similar facts and is only be decided at the discretion of a court or tribunal. The factual matrix of this case remains generic, so fortunately the judgment would likely be applicable in part to individual cases.

However it is helpful for employers to know that covid/long covid should be treated as an other illness.  The general position is:

1. There are some conditions which automatically render a person disabled (e.g. cancer, HIV/AIDs or multiple sclerosis) these are “deemed disabilities”;
2. There are some illnesses which can never amount to a disability such as drug or alcohol addiction, kleptomania or pyromania can never amount to a disability owing to the provisions of the  Equality Act 2010 (Disability) Regulations 2010, these are “excluded conditions”; and
3. Any other illness or condition may amount to a disability if it has a substantial and long-term adverse effect on a person's ability to carry out day-to-day activities.

Long covid, not being a ‘deemed disability’ or an ‘excluded condition’ falls within the third category and each case must be assessed on its own merits. 

Yet, it goes without saying, I recommend obtaining occupational health and medical records, so your case is strengthened in an unfair dismissal case. Employers should be made aware of the diagnosis and adjust the workplace to a reasonable standard to accommodate employees with Long COVID so they are not faced with a disability discrimination and unfair dismissal claim.

This is not to say that someone suffering a claim for long covid cannot be dismissed in circumstances where their health renders them unable to work.  Where a person’s ill health prevents them from being able to carry out their role, and the role cannot be adjusted to accommodate their condition, the employer might consider a capability procedure.  However capability dismissals on the grounds of ill health can be complex and I would always recommend undertaking them with specialist advice.

Should you have any queries about the issues raised in this article, or on any employment related matter, please contact our expert Arvin Sandhu by email or on 01494 893 542.