Long COVID is a disability
In the case of Burke -v- Turning Point Scotland (2022) , the Employment Tribunal has ruled that a person with long covid is a disabled person within the meaning of s6 of the Equality Act 2010.
For some people, coronavirus (COVID-19) can cause symptoms that last weeks or months after the infection has gone. This is sometimes called post-COVID-19 syndrome or "long COVID". Common long COVID symptoms include:
- extreme tiredness (fatigue)
- shortness of breath
- chest pain or tightness
- problems with memory and concentration ("brain fog")
- difficulty sleeping (insomnia)
- heart palpitations
- pins and needles
- joint pain
- depression and anxiety
- tinnitus, earaches
- feeling sick, diarrhoea, stomach aches, loss of appetite
- a high temperature, cough, headaches, sore throat, changes to sense of smell or taste
The Equality Act 2010
You must meet the definition of disability to have a disability discrimination claim under the Equality Act 2010. The definition of disability is set out at section 6:
(1) A person (P) has a disability if:
(a) P has a physical or mental impairment, and
(b) The impairment has a substantial and long-term adverse effect on P's ability to carry out normal day to day activities.
"Substantial" means 'more than minor or trivial' and the effect of an impairment is "long-term" if it "has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected".
Schedule 1 of the Equality Act gives further detail on the determination of a disability. For example, Schedule 1, paragraph (1)(i) provides that the effect of an impairment is long-term if it “has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected”. Paragraph 2 (ii) of Schedule 1 provides that if an impairment ceases to have a substantial adverse effect, it is to be treated as continuing to have that effect if that effect is likely to recur.
Mr Burke had worked for Turning Point Scotland (TPS) as a caretaker/ security guard for nearly twenty years when he returned a positive covid test in November 2020. Mr Burke took sick leave and never returned before his employment was terminated by TPS in August 2021. The symptoms were very mild at first, but developed into severe headaches and fatigue. He found it difficult to carry out simple activities, like taking a shower and dressing or household activities like cooking, ironing and shopping without needing to rest. Mr Burke did not attend social events such as his uncle's funeral or Christmas celebrations which was apparently not like him at all. He also found his symptoms of fatigue and exhaustion unpredictable in that they seemed to improve and then suddenly would come back. He gave TPS fit notes for his sickness absence which stated that he was suffering from fatigue. In June 2021 TPS stopped Mr Burke's sick pay and dismissed him in August 2021 on grounds of ill health after a consultation and capability process. TPS said that they could not keep his job open because they had limited resources as a charitable organisation and there was uncertainty as to when Mr Burke would return to work.
In the Employment Tribunal
Mr Burke sued TPS for unfair dismissal, disability and age discrimination, as well as failure to pay him a redundancy payment. TPS argued that he was not disabled and so the Tribunal held a hearing to decide whether or not Mr Burke was disabled for the purposes of the Equality Act 2010. When considering the point, the Tribunal judge found that:
- Mr Burke's symptoms met the definition of a physical impairment;
- The impairment had an adverse effect on Mr Burke's ability to carry our normal day to day activities; and
- The effect was substantial and long-term
Mr Burke’s symptoms during this time amounted to a disability within the definition of the Equality Act 2010. The Tribunal gave Mr Burke permission to proceed with his claim of disability discrimination against TPS. The nature of his symptoms and conditions meant it was difficult to predict how long the effect would last, but as both TPS and Mr Burke explained that they did not know when his symptoms would abate, then at the time his employment was terminated it 'could well' have lasted until the end of November 2021 and thus would have met the definition of 'long term'.