A recent tribunal hearing has ruled that an employee suffering from long Covid was ‘disabled’ under the Equality Act 2010 and so could bring a disability discrimination claim against his former employer.

In the case, Burke v Turning Point Scotland, the claimant, Mr Burke, was employed as a caretaker/security by Turning Point Scotland and had worked there for about 20 years.

He contracted Covid-19 in November 2020 and didn’t return to work after that point.

While his initial Covid symptoms were mild, severe headaches and fatigue developed. His symptoms resulted in him needing to rest after simple tasks, suffering sleep disturbance, being unable to perform household chores and experiencing joint pain, loss of appetite and an inability to concentrate.

The employer obtained two occupational health reports, both of which concluded that it was “unlikely” that Mr Burkes condition would amount to a disability under the Equality Act 2010.

Mr Burke had exhausted his sick pay entitlement in around June 2021 and was dismissed on the grounds of ill health in August 2021.

The claimant brought a number of claims against the employer, including for disability discrimination. A preliminary hearing was held to determine whether his condition constituted a disability, the employer claiming that it did not.

The Equality Act 2010

Long Covid is not a condition which is automatically considered a disability under the Equality Act 2010. Therefore, whether it is seen as a disability would depend on whether or not it meets the legal definition of a disability.

Disability under the Equality Act 2010 is defined as “a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on [one’s] ability to do normal daily activities.” ‘Substantial’ refers to something that is more than minor or trivial and ‘long-term’ means 12 months or more.

The tribunal found that Mr Burke’s condition could be considered a disability under the Act.

What do employers need to consider?

Long Covid may be considered a disability in some cases (though it isn’t automatically considered a disability under the Equality Act 2010), so employers need to bear this in mind.

The ruling could potentially result in an increase in cases where employees feel they have been treated unfairly by their employer due to having long Covid.

Of course, long Covid is a new condition and it is understandable that it may not be fully understood yet. However, as the ruling shows, it is clearly a genuine condition and employers should remember this in situations where their employees are suffering with the condition.

For assistance in this area, get in touch with the team at IHRS. Email HRhelp@ihrsolutions.co.uk or call 01604 709509.