Is long COVID a disability?
A recent Employment Tribunal decision held that an employee suffering with long COVID was disabled as defined by the Equality Act 2010 and could, therefore, proceed with his disability discrimination claim.
Long COVID has been widely reported since 2020. In October 2021, the World Health Organization formally recognised long COVID – now officially named post-COVID-19 condition – with the following clinical case definition:
“Post COVID-19 condition occurs in individuals with a history of probable or confirmed SARS CoV-2 infection, usually three months from the onset of COVID-19 with symptoms that last for at least two months and cannot be explained by an alternative diagnosis.”
Common symptoms include:
| Fatigue | Shortness of breath | Chest pain or tightness |
| Problems with memory and concentration ("brain fog") | Changes to sense of smell or taste | Feeling sick, diarrhoea, stomach aches, loss of appetite |
| Heart palpitations | Dizziness | Pins and needles |
| Joint pain | Depression and anxiety | Tinnitus, earaches |
| High temperature | Cough | Headaches |
| Sore throat | Insoimnia | Rashes |
Symptoms may arise following initial recovery from COVID-19 or may persist from the initial illness. Symptoms may also fluctuate or relapse over time.
Evidently, long COVID will have a potentially significant impact on everyday functioning for many people, but could it constitute a disability under the Equality Act 2010? In the case of Mr Burke v Turning Point Scotland (“Turning Point”), it did.
The facts of the case
Mr Burke was employed by Turning Point as a caretaker. In the autumn of 2020, he tested positive for COVID and although his initial symptoms were mild, these worsened and included severe headaches and fatigue. Simple tasks such as getting dressed and showering became almost insurmountable, and Mr Burke could no longer undertake day-to-day household activities.
He remained signed off from work for some time. His fit notes referred to the effects of long COVID and post-viral fatigue syndrome. Given the restrictions on in-person visits to the GP surgery, Mr Burke had to describe his symptoms over the phone, and initial fit notes were somewhat vague regarding his diagnosis.
Turning Point referred Mr Burke to Occupational Health, which concluded that he was “medically fit to return to work”, suggested a phased return and noted that it was unlikely that the disability provisions of the Equality Act would apply. When Mr Burke failed to return to work, a further Occupational Health report was undertaken via telephone consultation. This highlighted that Mr Burke was having “episodes of daytime sleepiness” but suggested this could be managed by keeping him actively engaged.
In August 2021, Mr Burke was dismissed due to his continuing absence from work, and he filed a disability discrimination claim. Turning Point denied that he was disabled and a preliminary hearing took place on the point.
What amounts to a disability?
A person is disabled under the Equality Act if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. For this definition, “substantial” means more than minor or trivial and “long-term” means that the impairment has lasted or is likely to last at least 12 months.
Long-COVID as a disability
Determining whether Mr Burke was disabled was not straightforward as his witness evidence was not supported by his GP records/fit notes, which did not particularise the issues that affected him. In addition two Occupational Health reports suggested that he was fit to return to return to work.
Despite this, the Judge accepted Mr Burke’s evidence of his long COVID constituting a disability, which concurred with the TUC report on workers’ experiences of long COVID. That report highlights that the most common symptoms included fatigue, issues with concentration, joint pain, headaches and muscle pain, just as Mr Burke experienced. It also noted that 35% of responders experienced symptoms for between 3 to 6 months, 29% of responders experienced symptoms for 12 months or more and that symptoms fluctuated. The Judge was also persuaded by the fact that Mr Burke was keen to return to work and that his sick pay had ended in June 2021 so there was no benefit in “pretending” to be ill.
The Judge, therefore, concluded that Mr Burke was suffering from long COVID and that it fell within the Equality Act definition of disability.
Will long COVID always be classed as a disability?
The simple answer is no!
The Equality and Human Rights Commission’s recent statement on this issue noted that cases of long COVID would not automatically fall under the definition of disability. However, long COVID might be a disability if it satisfied the usual Equality Act test (as noted above).
What does this mean for you or your business?
This much publicised decision may trigger more disability discrimination claims from employees suffering from long COVID and may see Tribunals being more willing to find that long COVID is a disability. Therefore, employers should tread carefully where employees are alleging and/or are signed off with long COVID, considering reasonable adjustments where appropriate and avoiding any less favourable or unfavourable treatment.
What do you need to be doing now?
Employers can mitigate their risks by taking the following practical steps:
- Train line managers to understand long COVID, its common symptoms and how to manage this in accordance with your policies and procedures.
- Obtain Occupational Health and medical input as required, to assist you in managing the impact of long COVID on performance and absence in a fair and non-discriminatory way.
- Carefully examine fit notes (during and post COVID) - just because they lack detail, you cannot assume that an employee is not disabled.
If in doubt, follow up and obtain clarification.
- Treat Occupational Health reports with caution - remember that they are not determinative in concluding whether an employee is, or is not, disabled.
- Consider what reasonable adjustments you could make for staff who are working with or off sick with long COVID. This could include phased returns to work, altering shift patterns or working hours, allowing working from home, adjusting trigger points in your absence management policies etc.
The full judgment can be read here.
The TUC report on Workers’ experiences of long COVID which can be found here.
The EHRC statement on long COVID can be found here.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.
