A Scottish Employment Tribunal has recently held that an employee with long covid was disabled under the Equality Act 2010. This is the second authority this year which has addressed whether long covid is a disability in the United Kingdom.

Before we look at the facts of the Scottish authority it is important to remind ourselves about the law on disability.

The Law

A person is defined as having a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. They must meet the threshold as set out under section 6 (1) Equality Act 2010.

The word ‘substantial’ is important as it means more than minor or trivial and can include the time taken to complete a task. The impairment must also have a long-term effect and last at least 12 months or for the remainder of the worker’s life if terminal.

It is also not necessary for an impairment to have a medically diagnosed cause. This is on the basis that it is the effect of the impairment that matters as opposed to the cause.

The impairment also has to have a long-term adverse effect on day- to -day activities and this means things that people undertake on a regular basis. Things like attending and taking part in social activities, walking, travelling, cooking, shopping, eating. It can also include the ability to get dressed, shower, and other domestic activities that we take for granted.

Earlier this year the Equality and Human Rights Commission sent out a tweet that stated that long covid should not be treated as a disability. This surprised many and caused consternation for many, so much so in fact, that it issued a clarification statement. It stated that long covid was not a deemed disability and that not all cases of long covid will pass the disability test. They went on to also say that “This does not affect whether long covid might amount to a disability for any particular individual – it will do so if it has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities” It also recommended that employers make reasonable adjustments where necessary for those deemed to be disabled.

What is Long covid?

After being infected with Covid, many people find that their symptoms reduce within 7 days to 4 weeks. Some people on the other hand experience symptoms for longer periods of time, and in some cases many months after their first diagnosis.

The NHS suggests that Long covid can take two forms. The first is referred to as ‘Ongoing symptomatic covid’ which is where symptoms continue for more than 4 weeks but less than 12 weeks. Then there is ‘Post covid syndrome’ which is where symptoms continue for more than 12 weeks and cannot be explained by another condition.

There are in fact many symptoms of long covid and some examples are as follows:-

• Fatigue
• Brain fog (loss of concentration, loss of memory)
• Breathlessness
• Palpitations
• Insomnia
• Dizziness
• Pins and needles/numbness
• Nausea
• Loss of taste and smell
• Muscle pain/Joint pain/abdominal pain
• Diarrhoea
• Skin rashes

The Office for National Statistics also suggests that 3.1% of the UK population have symptoms of long covid and that it was greatest in people between the ages of 35 to 69.

The recent Scottish authority

This involved Mr Burke who was a caretaker at Turning Point Scotland where he tested positive for Covid-19 in November 2020. At first his symptoms were mild, but then Mr Burke developed severe headaches, fatigue, anxiety and joint pain. He had difficulty in showering and dressing himself and this would involve him having to lie down to rest from sheer fatigue and exhaustion. He was also unable to undertake domestic activities such as cooking, ironing and shopping because he had a lack of energy.

Mr Burke remained off sick from work and as a consequence his pay ceased in June 2021. Mr Burke issued a series of GP fit notes and he was sent to Occupational Health where their reports made reference to the fact that he was suffering from long covid and post viral fatigue syndrome. Initially they suggested that Mr Burke was able to return to work and that it was unlikely that he was disabled. However Mr Burke was unable to return to work because of the fatigue that he was experiencing.

Unfortunately Mr Burke was dismissed by his employer in August 2021 on the grounds of incapacity and ill-health and they cited his continuing absence from work.

The dismissal letter stated that “having reviewed the capability report including occupational health opinion closely, and taken the details of our discussion into consideration, it is my view that you remain too ill to return to work…….and there appears to be nothing further we can do to adjust your duties or work environment that would make your return more likely. In addition, there does not appear to be a potential date on which there is a likelihood of you being able to return to full duties in the future.”

As a consequence of being dismissed, Mr Burke issued proceedings in the employment tribunal including disability discrimination. One of the issues at the Preliminary Hearing stage was to determine whether Mr Burke was disabled under section 6(1) Equality Act 2010 which was one of the hurdles that he would need to satisfy in order to pursue his disability discrimination claim. Unfortunately, the employer did not concede on the issue of disability and argued that Mr Burke was not disabled in law, and so it was left to the employment judge to determine the issue.

At the Preliminary Hearing the employer suggested that Mr Burke was exaggerating his symptoms, and made reference to the brevity of his GP’s fit notes. They also suggested that the reason Mr Burke failed to return to work was to avoid an internal restructuring exercise within his team.

During the course of both Mr Burke and his daughter’s evidence, the employment judge was satisfied that they had both given evidence of his ongoing symptoms and noted that there were severe restrictions at the time, on being able to secure face-to -face consultations with a GP. The employment judge also accepted that people suffering from long covid are likely to have good days and bad days.

It was also noted that the employer’s attempt to suggest that Mr Burke was over-exaggerating did not follow the rational that was set out in the dismissal letter which stated that he was “still experiencing symptoms of extreme fatigue” and which suggested that he remained “too ill to return to work”.

The employment judge held that Mr Burke’s suffered from impairments that had an adverse effect on his day-to-day activities and that overall the effects were substantial (notwithstanding the fact that he had good and bad days). It was also held that the effect’s of Mr Burke’s condition were also likely to be long-term.

This means that now it has been held that Mr Burke’s long covid condition has now been classed as a disability his case can now proceed to a full merits hearing where his substantive claims can be heard.

[Burke -v- Turning Point Scotland [2022] ET 4112457/2021]

What is best practice for employers in dealing with workers who are suffering from long covid?

Although the Burke authority is non-binding in law, it is the second of its kind on long-covid and confirms and re-iterates the section 6(1) hurdles that need to be overcome. It is clear that not every long covid sufferer will be classed as disabled if they do not overcome those hurdles and that as is usually the position, each case will be judged on its own facts.

Overall it is important that employers should tread carefully and be aware that a worker with long covid symptoms could be disabled in law and will have employment rights that they can pursue. There is also a duty to make reasonable adjustments in law and a failure to do so can be used against an employer in a disability discrimination claim.

Here are some pragmatic tips for employers to consider when dealing with workers who have long covid or indeed any long term illness.

Investigate and communicate Gather as much information as possible about the worker’s medical condition and prognosis. Collate GP’s fitnotes, all correspondence, notes of return to work meetings. Keep the situation under constant review and ask for more information from the worker’s GP (with their consent). Take time to communicate with the worker the nature of their symptoms, and any patterns they experience, and how they feel that their symptoms are impacting on their ability to work including travel to work.

Specialist advice Consider obtaining advice from an Occupational Health specialist, or an external medical specialist to keep updated on the worker’s condition. Bear in mind that the worker’s condition may change from time to time, as will their ability to meet section 6(1) thresholds. Be careful to ensure that you accurately set out the worker’s health symptoms and ask the specialist to provide a view as to whether they are disabled making reference to the effects on day-to-day activities and whether the effects are substantial.

Follow up Where specialist advice is unclear or is contradictory with other medical advice, then do follow up and seek further medical advice.

Make adjustments Where the employer has information which suggests that the condition might be long-term then consider if any adjustments can be made, for example providing additional rest breaks, agreeing flexible working arrangements, introducing part-time hours and homeworking, changing the worker’s role and/or adjusting their workload, offering counselling, refraining from taking disciplinary action for sickness absence.

Training Provide training to managers as to how they can best handle sensitive discussions around health and how to manage workers who are suffering from long covid. Ensure that written policies are understood and followed.

Policies Review relevant policies for example equal opportunities, health and safety, reasonable adjustment, disability, sickness absence, flexible working to ensure that they are up-to-date, and are fit for purpose and above all are non-discriminatory. You could even introduce a covid policy for the workplace.

We are now seeing a number of cases being heard by employment tribunals relating to covid, and it is certain that more authorities and developments will follow. As ever it is a case of watch this space.

If you have any questions relating to long covid and long-term sickness absence in general then please contact Michael Stewart (Partner and Head of Employment) at James Edward & Associates. Tel: 020 7 467 3988 E-mail: se@jamesedwardassociates.com