The recent case of Burke v Turning Point Scotland says yes.
From April 2001 Mr. Burke was employed as a caretaker for Turning Point. He contracted a mild case of COVID 19 in November 2020. He then began to experience severe headaches and exhaustion. He found it difficult to stand for longer periods and was unable to carry out domestic tasks around the house. He had a loss of appetite, joint pain and brain fog. He would find that one day he would feel better and the next would feel exhausted. He began to improve in January but was still far from recovered.
The fit notes provided to the employer referred to long COVID and post viral fatigue syndrome. The two Occupational Health reports provided were at odds with this. They concluded the Claimant was fit to return and that he was unlikely to meet the legal classification of disabled. In August 2021 he was dismissed due to ill health. He raised a disability discrimination case with the Employment Tribunal.
The first stage of the Tribunal process is to conclude whether the Claimant is in fact disabled. The definition of disability in terms of the law is a physical or mental impairment that has a substantial and long-term adverse effect on your ability to do normal daily activities, where ‘substantial’ means more than minor and ‘long term’ means for 12 months or more, or likely to last 12 months. The Claimant in this case was unable to walk to his nearest food shop, required assistance with domestic tasks, and suffered from brain fog and sleeping problems. The symptoms were capable of lasting more than a year and therefore the Claimant was found to be disabled for the purposes of the Equality Act 2010.
This is the first UK Tribunal case that we are aware of which has held that long COVID was a disability. The Tribunal saw no reason that the Claimant would lie particularly as he had already used up his entitlement to occupational sick pay.
This is an important case and will undoubtedly not be the last word in relation to long COVID. The latest figures show that there are over two million people in the UK suffering from this condition. This case does not mean that long COVID is automatically a disability and each case will have to turn on its specific facts. But employers should treat any employees with long COVID sensitively and be aware of the range of symptoms and the fluctuating nature of the condition.
If you have any questions on any of the issues mentioned in the above article, please contact Natalia Milne.