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Does long Covid meet the disability requirement under the Equality Act 2010?

An Employment Tribunal has determined, in the case of Burke v Turning Point Scotland ETS/4112457/2021, that an employee suffering with long Covid is  ‘disabled’ within the meaning of section 6 of the Equality Act 2010.

Section 6 of the Equality Act 2010

Under this section, a person is classed as disabled if they have:

  • a physical or mental impairment;
  • which has a substantial and long term adverse effect on the ability to carry out day-to-day activities.

Facts

A caretaker, Mr Burke, who had worked for his employer since April 2001, fell ill in November 2020 with Covid-19. Although at the time of infection, Mr Burke only suffered from relatively mild symptoms, these developed into long Covid-19, meaning that Mr Burke could not undertake regular household activities as he was suffering from severe headaches and fatigue.

Mr Burke remained absent from work from November 2020 under a series of fit notes issued by his GP, despite being deemed fit to work by two Occupational Health reports.

As a result of the conflicting notes and reports and his ongoing absence, Mr Burke was dismissed from work in August 2021 and he subsequently brought various claims against his employer, including a claim for unfair dismissal and disability discrimination.  A hearing took place for the tribunal to determine the preliminary issue of whether Mr Burke was disabled at the relevant time.

Held

The tribunal carefully went through the section 6 test in considering whether, in Mr Burke’s case, long Covid-19 amounted to a disability.  Whilst his condition fluctuated, it met the test for being substantial, not being either minor or insignificant. 

In terms of long term effect, at the time of the alleged discrimination (being the date he was dismissed), it could not be said that it had lasted 12 months or more.  However, the test includes “or likely to last 12 months or more” and the House of Lords had previously determined that this phrase means “could well happen” rather than “more likely than not” . Given that the reasons for dismissal included the fact that the employer could not determine when or if he would be fit for work, then the tribunal found that it followed that the test of being likely to last 12 months (a further three months at the date of dismissal) must be met.

Our Comments

The outcome of this case reflects the comments made by the Equality and Human Rights Commission’s Head of Employment Policy who suggested that, to avoid organisations inadvertently breaching equality law, they should treat their employees who have long Covid-19 symptoms as if they have a disability for the purposes of the Equality Act 2010 (as covered in our earlier article here).

This case demonstrates that the tribunals are starting to see cases of long Covid-19 coming through and are willing to interpret the symptoms as consistent with the definition of disability despite the uncertain and fluctuating nature of the condition.  It is also interesting to note that, even if a condition hasn’t lasted for twelve months, if an employer is relying on the fact that there is no way of knowing when the employee will be fit to return to work, that of itself may be accepted as evidence that it is likely to last twelve months.

So, once again, the best advice must be to focus on flexibility and what you can do to support your employees, making all reasonable adjustments possible to retain and manage talent, instead of focusing on an assessment of disability.  Ultimately, however, a finding of disability does not mean that employees cannot be dismissed for capability reasons. It simply means that you need to ensure that you have complied with all of your duties and taken what reasonable steps you can to avoid that outcome. 

For further information on this article, or help with managing and supporting an employee with long Covid-19 or any other potential disability, please contact Ashfords’ Employment Team.

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