386: Does the Equality Act provide protection for long Covid workers?

Case law has already established that long Covid may amount to a disability but that it will always depend on the precise facts and circumstances of each case. In Quinn v Sense Scotland, the Employment Tribunal (ET) ruled that Mrs Quinn did not satisfy the definition of a disability where she was not diagnosed with long Covid until six weeks after her dismissal. 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. ‘Long-term’ means that the impairment must be likely to last 12 months or more.

Mrs Quinn tested positive for Covid-19 around 11 July 2021 and subsequently experienced symptoms which affected her everyday life and disrupted her sleep, including fatigue, shortness of breath, pain and discomfort, headaches, and brain fog. She also struggled with shopping and driving and had to stop socialising and exercising. On 27 July, whilst still experiencing these symptoms, Mrs Quinn was dismissed. On 12 September, she was diagnosed with long Covid and brought a direct disability discrimination claim. As a preliminary issue, the ET had to decide whether she was disabled at the time of her dismissal. Mrs Quinn argued that because she was taking much longer to recover from Covid-19 than most other women of her age (50) who also had no underlying health conditions, it could have been predicted on 27 July that she would experience long-Covid. She also argued that Covid-19 and long Covid are part of the same condition.

The ET rejected these arguments, ruling that Covid-19 and long Covid are different conditions. At the time of her dismissal on 27 July, Mrs Quinn had only had Covid-19 for around two and a half weeks, and her long Covid was not diagnosed until six weeks later. Although Covid-19 was having a substantial adverse effect on her ability to carry out normal day-to-day activities, on 27 July this effect could not be classed as long-term. In addition, since most people with Covid-19 do not go on to develop long Covid, at the time of Mrs Quinn’s dismissal it could not have been predicted that she would suffer from long Covid.

Although employers should normally treat employees with a diagnosis of long Covid as though they are disabled for the purposes of the Equality Act, it is also crucial to consider whether their symptoms can be classed as long-term. Mrs Quinn’s circumstances can be contrasted with the case of Burke v Turning Point Scotland where it was held that the substantial adverse effects of the employee’s Covid symptoms were likely to be long-term because he had been absent from work with Covid-19 for nine months at the time of his dismissal.

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