27.06.2022

In Burke v Turning Point Scotland, an employment tribunal has found that an employee suffering from long covid was disabled for the purposes of the Equality Act 2010. Below, we consider the tribunal’s judgment and the implications of this case for employers.

What is long covid?

The term "long covid" is used to describe the symptoms and effects of Covid-19 that last longer than four weeks beyond a person’s initial diagnosis. Depending on how long the symptoms last for, long covid can be called one of 2 things:

• Ongoing symptomatic covid – where symptoms continue for more than 4 weeks. 
• Post-covid syndrome – where ongoing symptoms continue for longer than 12 weeks and cannot be explained by any other condition. 

Symptoms are very varied and may include: persistent fatigue; shortness of breath; brain fog (cognitive challenges); nausea/vomiting; dizziness; depression and anxiety; and a range of other symptoms.

The chances of having long-term symptoms does not seem to be linked to how ill a person was when they first got Covid-19. People who had mild symptoms at first can still have long-term problems. In some cases, people have begun to feel better before experiencing a return of their symptoms on an intermittent basis along with a need for further time off work. 

When is a condition a disability under the Equality Act and why does it matter?

The Equality Act defines a disability as a physical or mental impairment which has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities. ‘Substantial’ means more than minor or trivial. An impairment has a ‘long-term’ effect if it has lasted, or is likely to last, at least 12 months. (With regard to long covid, note that employers only really need to be concerned with whether ‘post-covid syndrome’ is a disability, as ongoing symptomatic covid would not satisfy the long-term part of the definition.) 

It’s worth noting that because this is a legal definition, any medical consensus on the issue is not strictly relevant. Medical professionals cannot say definitively that a person is or is not disabled for the purposes of the Equality Act. While employers will form a view as to whether an employee is disabled based on the medical evidence, in the event of a claim, the question will be determined definitively by the employment tribunal.

If an employee is disabled under the Equality Act, they are protected against discrimination (direct, indirect and because of something arising in consequence of their disability). In addition, their employer is under an obligation to make reasonable adjustments to accommodate their disability at work.

What happened in the Burke case?

Mr Burke had worked as a caretaker/security for the charity Turning Point Scotland (TPS) since 2001. In November 2020, he went off sick with Covid-19. Although his initial symptoms were relatively mild, Mr Burke later developed symptoms of extreme fatigue, sleep disruption, loss of appetite, joint pain, anxiety and headaches, which continued for many months after his initial Covid-19 infection.

Mr Burke remained off sick with these symptoms and provided TPS with fit notes from his GP to cover his absence. The fit notes cited various reasons for absence including ‘fatigue’, ‘post-viral syndrome’ and the ‘after-effects of long COVID’. An occupational health report in April 2021 said that Mr Burke’s symptoms had improved such that he was able to return to work, initially on a phased return. The report also stated that it was unlikely that Mr Burke was disabled under the Equality Act. However, Mr Burke did not return to work at that time because he continued to suffer from sleepiness during the daytime. TPS therefore arranged for Mr Burke to be seen by occupational health again in June 2021, with the report again taking the view that he could return to work and was unlikely to be disabled. However, Mr Burke’s symptoms worsened again after that and he remained off sick, providing further fit notes from his GP in June and July 2021 which gave the reason for his absence as ‘post viral fatigue syndrome’.

In August 2021, TPS dismissed Mr Burke on the grounds of ill-health as a result of his continuing absence from work. The dismissal letter confirmed that, taking into account the medical evidence, TPS considered that Mr Burke was not well enough to return to work, there were no adjustments that would help him return to work, there was no potential date on which he would be likely to be well enough to return, and it was not possible for TPS to hold his position open any longer. 

Mr Burke brought claims of unfair dismissal and disability discrimination (among others) in the employment tribunal. The tribunal considered the question of whether he was disabled under the Equality Act at a preliminary hearing. 

Was Mr Burke disabled under the Equality Act?

The tribunal found that, at the relevant time, Mr Burke was disabled for the purposes of the Equality Act. Mr Burke’s post viral fatigue syndrome (or long covid) had developed following his initial Covid-19 infection in November 2020. While the severity of Mr Burke’s long covid symptoms did vary over time, it was clear to the tribunal that the overall impact on his ability to undertake daily activities was both substantial and long-term. 

Regarding the impact of Mr Burke’s condition on his ability to undertake daily activities, the tribunal noted that he: 

• could not walk to the nearby shop to collect his paper;
• needed help with cooking, ironing and shopping; 
• had difficulty in concentrating or reading for any length of time; and 
• suffered from disturbed sleep.

The tribunal noted that individuals with long covid are likely to experience fluctuations in the severity of their symptoms – they would have good and bad days. It was therefore understandable that Mr Burke said he was keen to return to work at the time of the first occupational health report, but later felt unable to do so when his symptoms worsened.

In the tribunal’s view, the adverse effects of Mr Burke’s condition were likely to be long-term; when Mr Burke was dismissed in August 2021, it was apparent that those effects may well continue until November 2021 (which would be 12 months after his initial Covid-19 infection). The tribunal’s view on this point was influenced by the statement in the dismissal letter that it was not possible to identify a potential return to work date with any certainty.

The tribunal will now consider Mr Burke’s actual disability discrimination and unfair dismissal claims at a full hearing, with a decision anticipated later this year.

Implications for employers

As an employment tribunal decision, this case is not binding on other tribunals. It is also important to emphasise that every case will depend on its individual facts. Accordingly, the decision in this case does not mean that every employee with long covid will be disabled for the purposes of the Equality Act. 

In any given case, an employee suffering with long covid symptoms may well be able to demonstrate a physical or mental impairment that impacts their ability to carry out 'normal day-to-day activities'. For example, an employee suffering with breathlessness and brain fog may struggle to complete day-to-day activities such as walking or tasks which require concentration as easily as they could before. However, satisfying the 'substantial' and 'long term' requirements may be a more difficult exercise for employees and the answer will depend on the severity and duration of the symptoms in each case. Employers should note that the difficulty of getting face to face GP appointments during the height of the pandemic may mean that only relatively limited medical notes are available to support an employee’s description of their symptoms, since telephone consultations may not have been as detailed. Tribunals will be alive to this issue and may therefore not place much stock in the fact that an employee does not have much in the way of contemporaneous medical evidence as to the extent of their symptoms. 

Even where an employee with long covid is not disabled, employers will need to take care to manage their absence fairly and should still consider whether there are any adjustments they can make that would assist the employee to return to work and/or maintain good attendance. 

How we can help

We are running a seminar: Managing employee sickness absence: spotlight on tricky issues post-pandemic, which looks in more detail at whether long covid is likely to be a disability and the steps employers should take when managing employees with long covid. It will also cover other difficult issues such as: the effect of past Covid-19 related absence on managing other sickness absence going forwards; how to handle ongoing Covid-19 related absence; whether the pandemic has shifted the goalposts in relation to adjustments for employees with ongoing medical conditions; and ways of managing employee mental health and wellbeing as we emerge from the pandemic. This seminar is suitable for HR professionals and senior managers. It will be running on various dates in July at several locations (including online).

Click here to find out more information and to book. 

Make UK members can also speak to their regular adviser for further guidance. If you are not a member, our expert HR and legal advisers can offer guidance on a consultancy basis. For further information, contact us on 0808 168 5874 or email [email protected].