In a landmark decision, a Scottish Employment Tribunal has ruled that an employee suffering from long Covid was disabled for the purposes of the Equality Act 2010. Owen John, an employment lawyer at Darwin Gray LLP, looks at what this means for employers and employees.

The legal position

Where a worker has suffered a physical or mental condition for 12 months or more (or where that condition is likely to last for 12 months or more), that worker will be considered disabled under the Equality Act 2010 if that condition substantially impacts their day-to-day life. This will mean that their employer has a legal duty to make reasonable adjustments to help them at work. What is reasonable will depend on a number of factors including the nature of the work and the worker’s particular disability, but might include allowing the worker to work remotely or flexibly, for example.

Background

The Claimant in this case, Mr Burke, contracted Covid in November 2020. Although Mr Burke suffered from mild flu-like symptoms at first, after his isolation period, he developed severe headaches, joint pain and symptoms of fatigue. As a result of these symptoms, Mr Burke began to struggle to complete day-to-day activities, such as cleaning and shopping.

These symptoms persisted for several months. During this period, Mr Burke was absent from work. Although an Occupational Health report in April 2021 indicated that Mr Burke was medically fit to return to work, Mr Burke suffered an exacerbation of his symptoms and was signed off for a further period of absence.

Mr Burke was ultimately dismissed by his employer on grounds of ill-health. He subsequently brought various claims against his employer, including for unfair dismissal and disability discrimination.

The Employment Tribunal’s ruling

In a preliminary hearing, the Employment Tribunal held that during the relevant timeframe, Mr Burke was ‘disabled’ for the purposes of the Equality Act 2010.

It was accepted that Mr Burke suffered from the physical symptoms of long-Covid and although the severity of these symptoms varied from day to day, these symptoms prevented Mr Burke from completing daily tasks, such as shopping and cooking. It was therefore held that overall, these symptoms had a substantial and long-term adverse effect on his ability to do day to day things. The Employment Tribunal also decided that it was likely that these symptoms would continue for 12 months or more.

What is the practical effect of this ruling?

Since the beginning of the pandemic, the issue of whether or not long-Covid should be treated as a disability has been an extremely contentious one. Whilst this ruling does provide some much-needed guidance on the status of long-Covid in the context of the Equality Act 2010 and the potential implications for employers, it is important to remember that this decision does not mean that long-Covid should be automatically treated as a disability. Each case will depend on its own facts and employers should be mindful of the individual circumstances of each employee suffering from symptoms of long-Covid and seek legal advice where necessary.

If you are an employer or an employee and need advice on long covid or disability discrimination, please get in touch with our Employment and HR team on 02920 829 100 for a free, no-obligation chat to see how they can help.