David Sheppard and Sioned Thomas review an Employment Tribunal’s decision in relation to employees suffering from long Covid and what this means going forward.
For over two years now COVID-19 has been at the forefront of our lives with over 22.6 million people in the UK receiving positive tests. The ongoing impact on the pandemic on our health is clear, and long COVID refers to the ongoing symptoms experienced by people following the initial infection period. People suffering from long COVID experience a variety of symptoms including extreme tiredness, muscle pain and ‘brain fog’. The symptoms can vary between different people and can also vary in severity and duration. Until recently no Tribunal had considered whether long COVID would be classed as a disability under the Equality Act 2010.
In the recent employment tribunal case of Burke v Turning Point Scotland found that an employee suffering from long COVID was disabled within the meaning of the Equality Act.
Mr Burke was employed in the role of caretaker/security and was dismissed in August 2021 due to his continuing absence from work. Mr Burke contracted coronavirus in November 2020 and became absent from work due to his symptoms. He was experiencing severe headaches, fatigue and joint pains amongst other symptoms which prevented him from returning to work.
The Tribunal found that Mr Burke had experienced substantial and long-term side effects as a result of contracting coronavirus in November 2020 and was therefore considered disabled under the Equality Act.
Section 6 of the Equality Act sets out the necessary requirements a person must meet in order to be classed as disabled, namely they must be suffering from a mental or physical impairment, and that impairment needs to have a substantial and long-term negative impact on their ability to carry out their normal day to day activities. Long term means that it has lasted for at least 12 months, is likely to last for at least 12 months, or is likely to last for the rest of the affected person’s life.
The latest release from the Office for National Statistics (ONS) as of 1 May 2022, stated that an estimated 2 million people living in the UK were experiencing long COVID. Long COVID was defined as experiencing symptoms more than four weeks after first having COVID-19 that could not be explained by something else.
ONS also reported that 1.4 million of people suffering felt that long COVID symptoms had an adverse impact on their day-to-day activities. The fact that these symptoms are having a negative impact on people’s day to day activities suggests that it could potentially amount to a disability under the Equality Act if these symptoms continued or are likely to continue long term.
This decision does not automatically mean that every person suffering from long COVID will be classed as a disabled person, andeach case will still need to be reviewed separately and assessed on its own facts and employees will need to be able to evidence that they meet the statutory requirements of the Equality Act.
However, this case does show that in priniple employment tribunals are willing to view long COVID as a disability which may encourage more employees to make similar claims. Employers therefore need to be aware of the strong possibility that an employee with long COVID symptoms will have protections under Equality Act, and the duty to make reasonable adjustments will be triggered for that person, particularly if their attendance at work and performance in their role is impeded by their condition. The sheer number of people reported as having long COVID means this will be a new form of disability which will impact employers across all sectors and workforce demographics.
Employers will need to carefully assess and review employees who are suffering from long COVID to ensure they are able to carry out their roles safely. Employees should consult with occupational health providers to obtain advice and guidance to ensure individuals are fully supported. It is important for employers to consider what reasonable adjustments may be put in place to help assist employees with their roles and they could also consider bringing in policies specifically related to long COVID to clearly set out what support is available to employees.
If you are an employer concerned about how to manage and support employees suffering from long COVID or if you need help to review or draft new policies and considering what would amount to reasonable adjustments, please get in touch with our employment team for further information.