The Employment Tribunal recently concluded, in the case of Burke v Turning Point Scotland, that “long Covid” can be deemed a disability under the Equality Act 2010. Research published by the Office of National Statistics shows that as of 1st May 2022, 3.1% of the population, being around 2 million people, were suffering from symptoms of long Covid. Evidently, this is a condition that is impacting a significant number of people so it is important that employers and HR professionals consider what this means for them.
Case facts
The Claimant, Mr Burke, worked for the respondent as a caretaker. After Mr Burke contracted Covid-19 in mid November 2020, he was absent from work for around 10 months before he was eventually dismissed by the respondent in August 2021. Throughout this time, Mr Burke suffered with intense fatigue, lack of concentration, joint pain, severe headaches, loss of appetite and difficulty sleeping. Mr Burke’s symptoms would fluctuate from time to time.
Two occupational health assessments were conducted on Mr Burke by his employer and it was found after both assessments that Mr Burke was allegedly fit to return to work and that his symptoms of long Covid would be unlikely to be considered a disability.
Tribunal’s findings
Mr Burke brought a claim against his employer for disability discrimination and unfair dismissal.
The legal test for the tribunal to consider in relation to whether Mr Burke had a disability was whether:
1 – he had a physical or mental impairment;
2 – the impairment had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities; and
3 – the adverse effects of the impairment were long-term (so had lasted or were likely to last for at least 12 months).
The tribunal decided that the above grounds were met and Mr Burke’s symptoms of long Covid did indeed amount to a disability.
Practical steps for employers
It is important to note that whilst in Mr Burke’s case his long Covid was considered to be a disability, this will not always be the case. Each case needs to be assessed on an individual basis. The tribunal judgment does however make it clear that employers need to tread carefully in relation to any employees asserting that they suffer from the condition.
Some practical steps employers can take are as follows:
- Consider each case individually and separately. The impact of long Covid will vary from person to person and it is important to consider the symptoms of each person individually. Not every individual will meet the legal test with respect to which conditions constitute a disability, however employers should pay particular attention to the impact the symptoms are having on the individual’s day to day life.
- Be conscious of occupational health findings. Whilst employers should of course continue to seek advice and guidance from occupational health professionals and consider in detail their recommendations with respect to reasonable adjustments, their recommendations are not definitive in determining what constitutes a disability. The tribunal in this case determined that Mr Burke is disabled despite the occupational health reports stating that he was not likely to be considered disabled.
- Make reasonable adjustments. If you consider an employee is disabled due to long Covid, consider what reasonable adjustments you can make to help them return to work. For instance, consider whether you can offer a phased return or flexible working. This in turn will hopefully support the employee and also mitigate the employer’s risk.
- Manage disability related absences. Individuals who suffer with long Covid are likely to have fluctuating symptoms and may feel better on some days than others. Consider being more flexible in relation to levels of absence and review absence policies to ensure that they do not discriminate against those who may have to take shorter and more frequent absences due to their disability.
- Avoid other discrimination risks. The impact of long Covid may be worse for women and those who are older and have pre-existing medical conditions. This could present a risk of indirect sex or age discrimination. Employers should ensure that they are considering each case individually and are adopting a reasonable approach to managing long Covid in the workplace.
The Employment Team at Berry Smith provide expert and specialist advice on disability, discrimination and workplace grievances, among other employment related matters. Please contact us if you would like more information about the issues raised in this article or any other aspect of employment law at 029 2034 5511 or employment@berrysmith.com.