The Scottish Employment Tribunal, in the matter of Burke v Turning Point Scotland, has recently provided judgment as to whether an employee suffering from the symptoms of long COVID can be classed as being disabled under the Equality Act 2010.

As far as we are aware, this is the first judgment in an employment tribunal case regarding Long COVID.  Whilst this judgment is not binding on other Tribunals and was reached based on the specific facts of this case, with COVID-19 cases on the rise across the UK and with the ONS recently reporting that an estimated 3.1% (2 million people) were experiencing self-reported long COVID, it is important that employers understand this judgment and its possible wider connotations.

In this blog, we will delve into this case and provide some practical points for employers.

Disability within the Equality Act 2010

Within section 6 of the Equality Act 2010 (“the Act”), a person is defined as having a disability if they can demonstrate the following:

• they have a physical or mental impairment; and
• the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

The terms used in the above are given the following definitions:

• “Substantial” means more than minor or trivial. 
• “Long term” means that the effect of the impairment has lasted or is likely to last for at least 12 months.  The meaning of ‘likely’ in this context means that it could well happen.
• “Normal day to day activities” means the common things that most people do every day and often take for granted, such as concentration, speech, sleep, getting up and ready for the day etc.  Within an employee’s work these activities might include following instructions, keeping to a timetable or interacting with colleagues to name a few examples.

The definition of disability is important as disability is one of the protected characteristics set out in section 4 of the Act. The Act provides protection for disabled individuals against unlawful discrimination, including direct and indirect discrimination, harassment and victimisation. 

The facts of Burke v Turning Point Scotland

Mr Burke started work with the Turning Point Scotland (“the Respondent”) as a caretaker on 23 April 2001.

In November 2020, Mr Burke contracted COVID-19. Although initially he described his symptoms as mild, after the prescribed isolation period he developed severe headaches and fatigue. The fatigue particularly had an acute effect on him, preventing him from completing everyday domestic chores such as cooking and cleaning without feeling exhausted and needing to lie down. His sleeping pattern and concentration were also impeded. These symptoms were unpredictable meaning that his recovery would fluctuate between an improvement one day to relapsing into exhaustion in the next. Mr Burke only started to make a steady recovery in January 2022, though still suffered from disrupted sleep and some fatigue which impacted his daily life.

Following Mr Burke’s mandatory period of isolation after his initial positive test for COVID-19 in November 2020, he did not feel well enough to return to work. He proceeded to obtain fit notes from his doctor during his absence, which described Mr Burke’s long COVID symptoms including his fatigue.

In contrast, however, the two Occupational Health reports of the Respondent, dated April and June 2021 respectively, declared that Mr Burke was in fact medically fit to return to work, and further that his symptoms were “unlikely” to class him as falling with the definition of disability under the Act.

In around June 2021 Mr Burke’s sick pay stopped. He remained signed off sick.

After Mr Burke did not return to work, the Respondent terminated his employment in August 2021. Mr Burke consequently brought a claim on the grounds of disability discrimination.

Employment Tribunal Decision

At a Preliminary Hearing, the Employment Tribunal had to decide whether Mr Burke’s long COVID symptoms would mean he was classified as disabled and so protected under the Act, which, in turn, would entitle him to pursue his claim for disability discrimination.

It was the Tribunal’s view that Mr Burke was a disabled person at the relevant time. In reaching that decision, the Tribunal considered the definition of disability and decided that:

• Mr Burke did suffer from a physical impairment, being the post viral fatigue syndrome or long COVID, and that the fatigue prevented him from carrying out normal day-to-day activities;
• this impairment was substantial and long term in light of the fact that Mr Burke only exhibited signs of improvement in January 2022, and so the fatigue “could well” continue to have an impact 12 months after the symptoms had started in November 2021;
• Mr Burke had not been exaggerating his symptoms (contrary to the Respondent’s argument);
• there was no incentive for him to not return to work after he had used up the entirety of his sick pay;
• a lack of detail in the fit notes did not affect the finding that the Claimant was suffering from the symptoms described, though this was on account of the restrictions affecting face to face GP appointments during this period.

In reaching its Judgment, the Tribunal referred to the 2021 report on long COVID conducted by the Trade Union Congress (TUC), which analysed the common symptoms experienced by workers suffering from the condition (which included those experienced by Mr Burke) and found that the intensity of symptoms varied over time (which accorded with Mr Burke’s experience).

Mr Burke’s claim for disability discrimination will now proceed to be heard at a separate hearing.

Practical points for employers

As far as we are aware, this is the first Tribunal decision relating to disability discrimination based on long COVID symptoms.

The case emphasises that Tribunals will approach long COVID in the same way as other conditions or symptoms that are claimed to amount to a disability: by analysing the symptoms and seeing if they fulfil the definition of disability under the Act. Employers should bear this in mind when dealing with employees suffering from long COVID. It may be prudent for employers to start considering what reasonable adjustments they can implement to assist any employees suffering from the condition and take advice from occupational health and employment solicitors at an early stage.

This case also highlights that employers should not rely solely on the opinions provided in Occupational Health reports, and should remember that the question of disability relevant to the Equality Act 2010 is ultimately a legal test decided on by the Tribunal.

How we can help

Our award-winningEmployment team is experienced at advising on discrimination issues.

Please contact your usual member of the team if you would like to find out more about how we can help you.

This article contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.

“Brabners in Lancashire is located at Sceptre Court, Walton Summit. If you would like to discuss anything raised in this article, please give us a ring on 01772 823921, quote “Lancashare” and a member of our team will be happy to assist you. 

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