After well over eighteen months of speculation, we have the first case of an Employment Tribunal finding that an individual suffering the effects of so-called ‘long covid’ is capable of meeting the definition of disability for the purposes of the Equality Act.
Employment Judge Young sitting in the Scottish Tribunals found that the Claimant in the case of Burke v Turning Point Scotland was disabled for the relevant period.
Employment Solicitor Chris Dobbs discusses…
What is long covid?
When symptoms of covid persist beyond the usual period and into weeks and months, this may be considered ‘long covid’.
What is classed as a disability in employment law?
Under section 6 of the Equality Act 2010, a person is disabled if they have a ‘physical or mental impairment’ which has a long-lasting and substantial adverse effect on their ability to carry out normal day to day activities.
It is important to take into account that ‘substantial’ is defined in the Equality Act itself as meaning ‘more than minor or trivial’.
For the purposes of this test, ‘long term’ means that the effects have lasted or are likely to last at least 12 months or for the rest of the claimant’s life.
Is long covid a disability?
Mr Burke first tested positive in November 2020 and was absent from work until his dismissal in August 2021. The continuing absence was ultimately the reason for the Respondent’s decision to dismiss.
Initially, the Claimant had described his symptoms as “mild” and “flu like” but that these escalated to fatigue and exhaustion.
He gave examples of not having the energy to walk to get his newspaper, cook meals or perform household tasks. He also suffered joint pain and headaches which disrupted sleep and made him even more tired.
What did the tribunal find? What are the takeaways for employers?
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