The decision in the employment tribunal case of Burke v Turning Point Scotland is one of the first in the UK to address specific facts and has found that the long Covid symptoms suffered by Mr Burke amounted to a disability.
Burke had been employed by Turning Point Scotland since 2001 as a caretaker. He tested positive for Covid-19 in November 2020. His symptoms fluctuated and included severe headaches, joint pain, lack of mobility, sleeplessness and extreme fatigue. Due to his symptoms, he did not want to socialise or attend family gatherings. It was also difficult for him to conduct normal daily tasks such as cooking, ironing and shopping.
Burke remained signed off work until August 2021 when he was dismissed by his employer for “ill-health” reasons. Burke brought claims including one for disability discrimination. The tribunal had to determine, as a preliminary issue, whether Burke’s long Covid symptoms satisfied the definition of a disability under the Equality Act 2010.
Although Burke’s symptoms fluctuated, the tribunal held that he suffered from the physical impairment of post-viral fatigue syndrome caused by Covid-19 and that he continued to suffer with this physical impairment at the date of his dismissal in August 2021.
The tribunal held that this was a physical impairment which had an adverse effect on his ability to carry out normal day-to-day activities; that it was substantial (in that it was more than minor) and long-term. Accordingly, the tribunal was convinced that Burke’s long Covid amounted to a disability under the Equality Act. As his sick pay entitlement ended in June 2021, the tribunal found that there was no incentive for him to still be off work beyond this point.
Although each case will turn on its own facts it is likely that other employees in similar situations will be able to persuade a tribunal that their long Covid amounts to a disability, especially as the symptoms suffered by Burke are common among long Covid sufferers.
Given the potential for significant compensation to be ordered in disability discrimination cases and the risk of reputational damage to an employer, it would be prudent not to assume that employees with long Covid are exaggerating and to consider whether the particular case might qualify as a disability. In such cases, employers have a positive duty to consider what, if any, reasonable adjustments can be made. Key points will include:
Considering reasonable adjustments such as phased returns to work, adjusting working hours, the type of work done, continued home working and providing access to occupational health and employee assistance programmes.
Ensuring line managers appreciate the importance of applying policies and procedures in a non-discriminatory way and avoid the risk of allowing frustration at an employee’s repeat absences from impacting the decision-making process.
Proactively managing absence and referring employees to occupational health to gain a better understanding of the situation. Having up to date medical evidence is key if absence levels reach the point where an employer may reasonably dismiss on the grounds of lack of capability.
Adjusting internal processes to account for the effect of long Covid symptoms (such as brain fog) on employee performance.
Considering the application of any employer permanent health insurance policy and how intermittent absence affects entitlement to benefits.
Taking proper advice if they are unsure.
Brian Palmer is an employment law partner at Keystone Law