Charity worker with long Covid can make disability claim

The Employment Tribunal has ruled that an employee who was dismissed while suffering from long Covid is entitled to make a claim for disability discrimination.

Jennifer CafferkySolicitor in our employment team, reports on this recent case.

It held that his symptoms met the criteria for him to be classed as disabled under the terms of the Equality Act. 

The case involved Mr T Burke, who had worked at Turning Point Scotland (TPS).  

Burke suffered post viral fatigue syndrome, or long Covid, which caused symptoms such as extreme fatigue, joint pain, sleeplessness, lack of mobility and lack of energy.  

He was off work from 25 November 2020 until 13 August 2021, when he was dismissed. He had a series of medical certificates from his GP stating he was unable to work. 

In April, Burke had a telephone assessment with an occupational health advisor. His fatigue had decreased, and the advisor noted that he was medically fit to return to work. 

However, Burke’s symptoms returned before he restarted work and he had another assessment in June. This time the advisor reported that Burke’s symptoms were not a significant medical concern and TPS stopped his sick pay. 

That month there were discussions about merging two departments into a new integrated service. Burke was informed of the development and in a formal consultation on 1 July, he expressed concerns about the role TPS had proposed for him. 

He was dismissed on 13 August 2021. He received a letter from TPS that stated he was too ill to return to work, and they were unable to adjust his duties or work environment that would make his return more likely. There did not appear to be a potential date that he would be able to return to his duties.  

Burke brought a claim for disability, age discrimination and unfair dismissal. TPS denied the claims and argued Burke had been staying away due to concerns about the merger. 

There was a preliminary hearing to determine whether Burke’s condition amounted to a disability. 

The tribunal accepted that his symptoms fluctuated and that he had been willing to return to work in April before his symptoms returned. If his condition was likely to last for at least 12 months, it could be classed as long term and would meet the definition of a disability.  

TPS had dismissed Burke after nine months as they could not see a potential date on which there was a likelihood that he may be able to return. 

It was likely that at the date of his dismissal, Burke’s symptoms could have lasted until November 2021. 

This meant that he was a disabled person between 25 November 2020 to 13 August 2021 and could pursue a legal claim on that basis. 

If you would like more information about the issues raised in this article, or any aspect of employment law please contact Jennifer on 01228 516666 or click here to send her an email.