374: Is long Covid a disability under Equality Act 2010?

Under the Equality Act 2010, a disability is defined as a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. There has been some debate about whether long Covid can be classed as a disability, particularly when symptoms vary so much in nature and severity. In the recent case of Burke v Turning Point Scotland, an Employment Tribunal (the Tribunal) looked at whether an employee with long Covid symptoms was disabled for the purposes of the Equality Act 2010.

Mr Burke was employed by Turning Point Scotland as a caretaker. He tested positive for Covid in November 2020 and did not return to work. Although initially his symptoms were mild, he subsequently developed a range of more serious symptoms including severe headaches, extreme fatigue, joint pain, loss of appetite, impaired concentration and difficulties sleeping. This affected his ability to undertake day-to-day activities such as cooking, ironing, shopping and socialising. His symptoms were unpredictable, so periods of improvement would be followed by fatigue and exhaustion again. Although Mr Burke’s health improved, his day-to-day activities continued to be affected. His fit notes mentioned long Covid and post-viral fatigue syndrome, but two occupational health reports stated that he was fit to return to work and that the disability provisions of the Equality Act 2010 were unlikely to apply. Mr Burke was dismissed in August 2021 on grounds of ill health. He brought various claims including disability discrimination.

The Tribunal had to decide, as a preliminary issue, whether Mr Burke’s long Covid symptoms and prognosis met the statutory definition of a disability. It concluded that his physical impairments had an adverse effect on his ability to carry out normal day-to-day activities and that this effect was substantial (which is defined as more than minor or trivial). In Mr Burke’s case, the effects were also likely to be long-term because they could well last for a period of 12 months from the date of his dismissal. Even Mr Burke’s employer conceded that there was no date when his return to work seemed likely. The Tribunal rejected Turning Point’s suggestion that Mr Burke had been exaggerating his symptoms, noting that they were consistent with a June 2021 TUC report on long Covid (Workers’ experience of long Covid). The Tribunal ruled that he was disabled for the purposes of the Equality Act 2010. This ruling means that Mr Burke can now proceed with his disability discrimination claim.

Although subject to appeal, this is a useful decision which clarifies that long Covid may come within the statutory definition of a disability. However, it is important to note that the outcome of each case will turn on its own facts, so long Covid will not always amount to a disability. When dealing with employees suffering from long Covid, employers should minimise the risk of successful disability discrimination claims by applying absence management policies carefully, seeking medical advice, and considering reasonable adjustments. This case also illustrates that although medical and occupational health reports can help employers understand an employee’s symptoms and prognosis, the question of whether a particular condition meets the statutory definition of a disability is a legal question to be determined by a Tribunal.

If you have any queries regarding the above news items or require legal support, please do get in contact with our specialist employment team, to advise on your specific circumstances.