Practice management

Dealing with long Covid as a disability

A recent employment tribunal case ruled that long Covid may be classed as a disability – what are the implications?

Photograph of woman on sofa looking unwell
  • Date: 28 September 2022

THE UK is slowly emerging from the global coronavirus pandemic and we can all appreciate the physical and mental impact it has had on ourselves, friends and family.

At the start of the pandemic, it was unclear exactly what the long-term impact of Covid would be and we are still finding out more about how this virus may affect us.

One key development is the condition known as long Covid, which was first identified following the first wave of infections in 2020. According to the latest data from the Office for National Statistics, around two million people were experiencing self-reported long Covid symptoms as of 31 July, 2022.

A recent employment tribunal case has brought this condition to the forefront of employers’ minds after it was held that the symptoms brought about by long Covid may be classed as a disability.

Why is this so significant from an employment law perspective?

An employee who is classed as disabled in employment terms is entitled to a range of protections and added employment rights.

The case explained

In the case of Burke v Turning Point Scotland, Mr Burke had worked as a caretaker for almost 20 years when he contracted Covid-19 in November 2020, initially suffering fairly mild symptoms. However, his condition later worsened and he experienced extreme fatigue, sleep disruption, loss of appetite, joint pain, anxiety and headaches. He was unable to work for nine months and was eventually dismissed on the grounds of ill health.

He took his case to an employment tribunal and at a preliminary hearing the judge decided that Mr Burke’s symptoms amounted to a disability within the definition of the Equality Act 2010. This was despite the fact his symptoms could fluctuate and he would have “good days and bad days”.

It was found that Covid had a substantial and long-term effect on his ability to undertake his normal day-to-day activities, which meets the definition of disabled under the Equality Act.

The tribunal gave Mr Burke permission to go ahead with his claim of disability discrimination against his former employer.

The outcome also highlights the potential risks of employers relying entirely upon occupational health reports, particularly in situations involving novel or unusual conditions. Mr Burke’s employer did seek independent health advice before dismissing him, and two separate reports stated that it was unlikely he would be classed as disabled. But the tribunal judgement described the advice given as unhelpful. It is a reminder that opinions about disability expressed in medical reports should therefore be considered carefully.

Further support

If you need further support with a case related to long Covid, please do not hesitate to contact the HR and employment advisory team at advice@mddus.com

Key points

  • Long Covid may amount to a disability, so employers should bear this in mind when dealing with such cases.
  • It is not a condition that is automatically deemed to meet the definition of disability, so it is essential to consider each staff member’s individual circumstances.
  • You should think about what reasonable adjustments to the environment or role may be appropriate to help an employee suffering with long Covid.
  • HR and employment processes should be applied fairly to all staff. You must not select an employee for redundancy or retirement because they are disabled.
  • As with any employee relations case, good communication and engagement with the employee are crucial.
  • Be sure to follow the practice’s absence/capability procedures.

This page was correct at the time of publication. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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