Caretaker successfully claims long Covid as disability in landmark tribunal case

Experts warn more cases are likely and urge employers to ‘double down’ on sick leave and support policies

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A charity caretaker has become one of the first people to successfully claim that their symptoms of long Covid amounted to a disability.

An employment tribunal heard that Mr T Burke was dismissed on “ill-health grounds” after he was unable to work for nine months after suffering substantial and long-term side effects from Covid-19, which he first contracted in November 2020.

However, Burke claimed he was unfairly dismissed and discriminated against on the basis of disability and age – with his disability being long Covid – adding that his employer failed to provide a redundancy payment.

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While the tribunal has not yet passed judgment on whether Burke’s dismissal was unfair, in a preliminary hearing it ruled that, in this instance, Burke’s long Covid did amount to a disability under the Equality Act.

Employment Judge J D Young concluded that Burke’s condition had a “long-term substantial adverse effect”, meaning it was likely to last for a period of 12 months and that his impairment did have “an adverse effect on day-to-day activities”.

“I consider that the relevant tests are met to meet the definition of disability, and that Mr Burke was a disabled person in the period of the alleged discriminatory acts,” Young said.

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Commenting on the case, James Potts, legal services director at Peninsula, said the judgment was the first of what could become many rulings on the issue. “The expectation is that more cases will make their way through the tribunal system, and so employers are advised to treat each one individually and be prepared to consider reasonable adjustment, even where medical evidence is inconclusive on the disability question,” he said.

But, Potts added, this tribunal’s decision was not binding on other courts and not all cases of long Covid would amount to a disability. “Each case will turn on its own facts,” he said, adding that, even in this case, a higher court might reach a different conclusion if the ruling is challenged.

Nonetheless, the case is likely to be an “encouragement to other employees in similar circumstances”, said Brian Palmer, employment partner at Keystone Law, who also expects an increasing number of similar claims.

Given the potential for significant compensation to be awarded in disability discrimination cases, Palmer said it would be “prudent [for employers] to assume that long Covid qualifies as a disability”, and advised firms to consider what, if any, reasonable adjustments can be made.

This was echoed by Marie Hoolihan, senior associate at King & Spalding, who said the judgment had “potentially opened the door to a considerably larger pool of possible disabilities”.

Employers may now be worried that staff could launch disability discrimination claims using the “wide spectrum” of possible long Covid symptoms, said Hoolihan. “As such, employers must double down to ensure that appropriate procedures for sick leave and support are in place.” 

Burke was employed as a caretaker for Turning Point Scotland from April 2001 until August 2021. The tribunal heard that Burke and his wife contracted Covid in November 2020 and he described his symptoms as “flu like” over his isolation period. However, after the isolation period he developed severe headaches and fatigue. 

Burke told the tribunal that, during the time following isolation, after “waking, showering and dressing” he would need to lie down to rest from exhaustion and that he struggled with standing for long periods. He would walk to his local shop to buy a newspaper, but that became difficult and he stopped. 

He reported other symptoms, including joint pain in his arms, legs and shoulders, a loss of appetite, problems concentrating and problems sleeping. The tribunal noted Burke did not feel well enough to socialise or attend important events including his uncle’s funeral in December 2020.

During this time, Burke had several consultations with his GP, where he was diagnosed with post-viral fatigue syndrome and received several extended sick notes.

Burke did not work for the nine months between testing positive for Covid and his dismissal; however, during that time, he did have a telephone consultation with occupational health (OH). The subsequent report, provided by OH in April 2021, concluded Burke was “medically fit to return to work”, advising a phased approach. It also concluded that it was “unlikely” that the disability provision in the Equality Act would apply to Burke.

There was a follow-up consultation in June, and Burke was dismissed on 13 August 2021 on grounds of ill-health.

Burke’s dismissal read: “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 and due to uncertainty around a potential work date.”

Judge Young ruled that while Burke had not suffered “substantial adverse effects in a consistent manner” from his long Covid, his symptoms were likely to recur and therefore should be deemed to have a “long-term effect within the parameters of the legislation”.

The case will now proceed to a hearing in respect of the claims of discrimination arising as a consequence of disability, indirect disability discrimination and failure to make reasonable adjustments.

Kenny Crawford, director of finance and resources at Turning Point Scotland, said it would not be appropriate to comment on the case as it is ongoing.

But, he said: “Turning Point Scotland recognises its legal obligations under the Equality Act 2010 with all sections of society and remains an equal opportunities employer, with a positive approach to reasonable adjustment, a risk assessment approach and a supportive culture”.