• Robin White

Is Long COVID a disability?

Although the worst of the pandemic is now behind us, the legacy of 2020 and 2021 still lingers; one of the areas where people are still feeling the effect is what’s known as Long COVID, when the symptoms of the virus continue to cause health problems for weeks after infection, or even months.

According to the NHS website, symptoms of Long COVID can include:

· Extreme tiredness

· Shortness of breath

· Chest pain or tightness

· Memory and concentration problems (colloquially known as brain fog)

· Insomnia

· Heart palpitations

· Dizziness

· Pins and needles

· Joint pain

· Depression and anxiety

· Tinnitus

· Nausea, diarrhoea, loss of appetite.

As well as the effect on health, this can also cause problems for employees, particularly if the symptoms have a debilitating effect on their capability to work.

But what does the law say about Long COVID?

In the first case of its kind since the pandemic began in 2020, an employment tribunal in Scotland has been presented with a case of disability discrimination, amongst other claims, made by a claimant who was dismissed on the grounds of medical capability following an absence for Long COVID.

Case details

Mr Burke was employed for 20 years as a Caretaker/Security Guard for a company called Turning Point Scotland, a charity that supports individuals in need, including those with disabilities.

In November 2020, Mr Burke contracted COVID-19 for the first time. His symptoms initially began as mild and flu-like but following his initial 10-day mandatory self-isolation, the symptoms had become severe, including but not limited to:

- Severe headaches

- Chronic fatigue affecting his basic ability to shower or dress himself, as well as leaving him unable to perform basic household chores

- Inability to walk to his local shop for his newspaper (which used to be his morning routine prior to his illness)

- Disturbed sleep

- Severe joint pains

- An inability to concentrate

He felt worse on some days, and better on other days. He provided fit notes throughout his absence, many of which were issued by GPs via telephone consultations, and these fit notes had stated things like “fatigue” “post viral fatigue syndrome” and “after-effects of Long COVID”.

Turning Point Scotland sought independent Occupational Health assessments for Mr Burke in both April and June 2021, following which both medical reports confirmed that in their opinion, it was “unlikely” that his condition would meet the definition of a disability for the purposes of the Equality Act 2010.

Following this information, and additional information around Mr Burke’s medical capability to return to work in the near future, Turning Point Scotland proceeded to conduct a medical capability process. The outcome was that Mr Burke was dismissed on the grounds of medical capability in August 2021.

He then made several claims to the employment tribunal, including one of disability discrimination, on which this case summary will focus.

Turning Point Scotland asked for the disability discrimination claim to be struck out on the basis that Mr Burke’s condition did not meet the definition of a disability under the Equality Act 2010, as had been highlighted in their two Occupational Health reports.

Mr Burke contested this, and the employment tribunal felt a preliminary hearing would be needed to decide if the test of disability for the purposes of the Equality Act 2010 had been met in this case.

The employment tribunal referred to the Trade Union Congress’ report “Workers’ experience of Long COVID”.

They noted the TUC findings within that report that fatigue is the most commonly reported symptom of Long COVID, although issues concerning concentration, joint pain, muscle pain and headaches were also mentioned at various points. It was also reported that roughly 29% of respondents experienced symptoms for 12 months or more and those symptoms varied over time, becoming worse on some days than others.

The test to meet for a condition to be deemed a disability within the meaning of the Equality Act 2010 is that the individual must have “a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.”

Applying these principles, in conjunction with the TUC report, the employment tribunal concluded that in this particular case:

Mr Burke was proven to have a physical impairment, and that impairment was also proven to be Long COVID/post-viral fatigue syndrome.

Mr Burke’s fluctuating symptoms were consistent with those outlined in the TUC report, in so far as he felt worse on some days but better on other days.

Mr Burke was not exaggerating his symptoms, as Turning Point Scotland had suggested. As he had already exhausted his sick pay entitlement, there was no incentive for him to remain off work. In addition to this, his 20 years of continuous service with Turning Point Scotland would not have implied to the tribunal that he was pretending to be unfit for work.

The fact that there was no particularisation of symptoms in some of the GP fit notes, which was due to the severe restrictions and limited availability for GPs to be able to conduct face-to-face meetings at that time, did not mean that those symptoms did not exist. The diagnosis given by the GP had been “post-viral fatigue syndrome” caused by COVID-19

Mr Burke’s physical impairment was proven to have had an adverse effect on his ability to carry out normal day-to-day activities, and

This adverse effect was more than minor or trivial; it was proven to be long-term because it “could well” be that it would last for a period of 12 months when viewed from the dismissal date, which was the last alleged discriminatory act.

The employment tribunal ruled in this particular case (based on this very specific set of circumstances and facts) that Mr Burke’s symptoms of Long COVID did meet the definition of a disability as set out under the Equality Act 2010.

What does decision this mean for employers?

This case has been reported by some media outlets as a ruling that Long COVID will now automatically be recognised as a disability for the purposes of the Equality Act 2010. However, that statement is not factually correct.

The reality is that, for this case, based on these very specific facts and circumstances, the symptoms Mr Burke had reported to be experiencing, which were both caused by and arising out of his condition of Long COVID, were found to have met the test for a disability under the Equality Act 2010.

The only conditions which are currently automatically deemed to be disabilities under the Equality Act 2010 are Cancer, HIV and Multiple Sclerosis. For all other conditions, the usual test remains to be applied to make that decision.

As with all medical conditions, this case provides a stark reminder to employers to be mindful of the possibility that an employee’s mental and/or physical symptoms and conditions, including those of Long COVID, could - in certain circumstances - be deemed by an employment tribunal to meet the definition of a disability, where they have a substantial and long-term adverse effect on the person’s ability to do normal daily activities.

This is a very new area of employment law and as such, each case will turn on its own facts. One of the key elements of a successful defence of a tribunal claim is expert and reliable legal advice and getting this early - when writing your policies and procedures, and training your staff, if possible - can make all the difference.