'Long Covid', or 'Post-Covid 19 Syndrome' is defined as: 'Signs and symptoms that develop during or after an infection consistent with Covid-19, which continue for more than 12 weeks and are not explained by an alternative diagnosis. It usually presents with clusters of symptoms, often overlapping, which can fluctuate and change over time and can affect any system in the body'.

Although the majority of people recover within 12-weeks, it is estimated that 1.3 million people in the UK are suffering with prolonged side effects. How should employers manage this condition, and does it amount to a disability within the meaning of section 6 of the Equality Act 2010?

In a recent decision where the court was only considering whether the condition was sufficiently serious to be deemed a disability, the Employment Tribunal in the Scottish case of Burke v Turning Point Scotland [2021], held that Mr Burke’s condition was sufficiently serious and long lasting to meet the relevant tests of the definition of disability as set out in the Equality Act 2010.

Mr Burke was a caretaker at Turning Point Scotland. He tested positive for Covid-19 in November 2020. After the onset of relatively mild symptoms Mr Burke went on to develop severe headaches and fatigue and his condition was so serious that he was unable to undertake usual household activities such as cooking, ironing and shopping because of a lack of energy.

Mr Burke remained off work for over 6 months. Following a series of fit notes his employer obtained occupational health reports referencing long-Covid and post viral fatigue syndrome. Mr Burke was dismissed on the grounds of ill health in August 2021 ‘given the uncertainty around any potential date on which he would be able to return to full duties’

In this case, the physical impairment had a clear adverse effect on his ability to carry out normal day-to-day activities. This effect was more than minor or trivial and long term because it "could well" last for a period of 12 months or more. The condition was therefore held to be a disability and the case now moves on to consider whether he was fairly dismissed.

It should be remembered that this was a preliminary decision as to the nature of the condition only. The Tribunal has not deemed his dismissal unfair at this time and this does not necessarily mean that the employer did discriminate.

In Conclusion.

There is a large variation in the nature and severity of Long Covid symptoms. Mr Burke was clearly unfortunate enough to suffer from a condition that was particularly debilitating and long lasting. Whilst this ruling is not binding and does not mean that everyone with long-COVID will be deemed disabled, it is likely to encourage more claims from employees suffering with the condition.

As usual the question for any employer remains whether the Long Covid as manifest in the particular employee

  • has a clear adverse effect on their ability to carry out normal day-to-day activities.
  • Is any effect more than minor or trivial, and
  • Is any effect long term in that it has, or is likely to last for a period of 12 months or more.

Employers would be well advised to ensure that any period of illness is documented, including how any employee was affected by the condition. If the effects last longer than 12 weeks, consideration should be given as to whether a medical report is required to be able to assess the condition, particularly if you are considering any disciplinary action or dismissal.

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance.

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