Further to the Equalities and Human Rights Commission (EHRC), having to amend its position on long Covid being a disability in May this year, a Scottish employment tribunal has ruled that an employee suffering from long covid was disabled for the purposes of the Equality Act 2010 (Burke v Turning Point Scotland).

Mr Burke was a caretaker for Turning Point from 2001. He had first contracted Covid in November 2020 and initially had mild, flu-like symptoms. However, after the isolation period, he started to experience symptoms which had an adverse impact on his ability to perform day to day activities like cooking meals, ironing, shopping and popping out to buy a newspaper. He had to lie down and rest after waking, showering and dressing. He also experienced sleep disruption, loss of appetite and joint pain. Mr Burke felt better on some days than others, but remained off work from November 2020. His GP provided fit notes which referred to post viral fatigue syndrome and the after-effects of long Covid.

Turning Point obtained two occupational health reports, both of which concluded that the disability provisions of the Equality Act 2010 were unlikely to apply. His sick pay entitlement ran out in June 2021 and he was dismissed on the grounds of ill health in August 2021.

Mr Burke brought several claims against Turning Point, including one for disability discrimination.

The Tribunal found that Mr Burke had a physical impairment and that his symptoms were consistent with a June 2021 TUC report about long Covid. The physical impairment had an adverse effect on his ability to carry out normal day to day activities. The effect was more than minor/trivial and it was long term, because the Tribunal said, it “could well” last for 12 months or more from the discriminatory act, which was the dismissal date.

This is a decision from an Employment Tribunal, so it is not binding on other courts, however, the ruling may result in more claims from those individuals who feel that they have been discriminated against because of having long Covid. Employers should be mindful of this decision when dealing with employees who are suffering from this condition. This case does not say that long Covid is a disability, but that it may amount to one, so employers will need to follow the appropriate steps to conclude whether or not the employee’s condition may amount to a disability. Alongside that, employers should consider if any reasonable adjustments should be made for employees suffering from long Covid. Each case turns on its own facts and it will be interesting to see whether more claims are brought (& whether or not they succeed) on this basis. In the meantime, employers should keep an open mind and proceed with caution.

If you have any questions, please contact a member of the Employment Team.