Long-COVID - Employee Was Not Disabled at Time of Dismissal

How Is 'Disability' Defined Under the Act?

According to the Act, a person will be disabled in law if:

• they have a physical or mental impairment
• which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities (which can include work)

An impairment will have a long-term effect only if it has lasted for at least 12 months, it is likely to last for 12 months, or it is likely to last for the rest of the person's life.

A Case of Dismissal and Long-COVID  

In the case of Quinn v Sense Scotland, Mrs Quinn was employed as Head of People between December 2019 until her dismissal in July 2021. Mrs Quinn tested positive for COVID around 11 July 2021. She experienced fatigue, shortness of breath, general aches and pains, headaches and brain fog. She was affected in many aspects of her everyday life and her sleep was disrupted. She struggled with daily activities including shopping and driving, and she stopped exercising and socialising. Mrs Quinn was dismissed on 27 July 2021 and there is no detail given in the judgment of the reason given by Sense Scotland for her dismissal.

Mrs Quinn brought a direct disability discrimination claim, amongst other claims. As a preliminary issue, the Tribunal had to reach a decision on whether Mrs Quinn was disabled under the Act, at the time of her dismissal.

Was there a Disability?

The Tribunal found Mrs Quinn was not disabled at the time she was dismissed. She was diagnosed with long-COVID six weeks after her dismissal. At the time of her dismissal, long-COVID had not even been mentioned as a possibility. The Tribunal accepted Mrs Quinn's ability to carry out normal day-to-day activities was substantially impacted by COVID. However, the effect had lasted only two and a half weeks at the time of her dismissal, so it could not be said to be "long term" for the purpose of the statutory definition.

Key Takeaways for Employers

This is a first instance decision, so it is not binding on other Tribunals. It nevertheless provides a useful illustration of how the statutory definition of 'disability' can be applied to somebody whose COVID turns into long-COVID over time. In particular, where a person's ability to carry out normal day-to-day activities is impacted, whilst the impact might well be significant, it needs to have been a truly 'long-term effect' in order for the statutory definition to be met.

For advice regarding dismissal due to long-COVID, please contact Nick Murrell in our Employment team on 0117 314 5627, or complete the form below.