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Employee with Long COVID Symptoms Was Disabled Under the Equality Act

on Friday, 01 July 2022.

An Employment Tribunal has found an employee suffering from symptoms of long COVID was disabled under the Equality Act 2010.

Long COVID is a condition that is likely to take some time to fully understand. It can be difficult for employers to navigate issues relating to long COVID in the workplace because it is a condition that affects sufferers very differently. We are now beginning to see the first long COVID claims coming up through the Tribunals. It is important to keep abreast of the way Tribunals are approaching these claims, in order to help employers manage any long COVID-related issues that arise in the workplace.

Dismissal Due to Inability to Return to Work

In the claim of Burke v Turning Point Scotland, Mr Burke was employed as a caretaker. He tested positive for COVID-19 in November 2020. He began to deteriorate towards the end of his isolation period and was unable to return to work. His symptoms, which were described as 'unpredictable', included joint pain, loss of appetite, reduced ability to concentrate, fatigue and exhaustion. Although Mr Burke continued to provide fit notes from his GP to evidence his inability to return to work during his period of sick leave, Turning Point began to question the validity of his symptoms. Two Occupational Health reports were requested by the employer. These stated he was fit to return to work and unlikely to be disabled under the Equality Act. However, due to his ongoing symptoms, Mr Burke did not in fact return to work. He was dismissed in August 2021.

What Did the Tribunal Decide?

The Tribunal concluded Mr Burke was disabled during the relevant period. He had a physical impairment (post-viral fatigue syndrome caused by COVID-19) which had an adverse effect on his ability to carry out normal day-to-day activities. The adverse effect was more than minor or trivial, and it was long term. Mr Burke had no incentive to remain off work having exhausted his sick pay. The Tribunal considered he was not exaggerating his symptoms.

Long COVID and Dismissal - A Grey Area  

This case is a helpful illustration of when long COVID symptoms might qualify a person as disabled for the purposes of the Equality Act. The fact symptoms might fluctuate will not automatically prevent a person from being classed as disabled.

Employers should seek medical advice to understand an employee's condition if they are suffering from long COVID. As part of this advice, employers should ask whether there are any adjustments that might help the employee return to, or remain in, work. The employer can then take a decision on whether any proposed adjustments are reasonable.

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For further advice, please contact Sian Knight-James in our Employment team on 07468 698 971, or complete the form below.

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