Mrs Quinn was employed as Head of People for Sense Scotland. In July 2021 she contracted COVID. Her symptoms impacted her everyday life. She suffered from exhaustion, headaches, shortness of breath, disrupted sleep patterns as well as general pain and discomfort. After her routine was disrupted to the extent that she stopped exercising and socialising she contacted her GP and booked an appointment on 26 July 2021. She was dismissed from her employment the next day. On two occasions in August she met with her doctor who concluded she could not work due to her ongoing symptoms. In September she was diagnosed with long COVID.
The Claimant raised a claim of direct discrimination against her employer. When this kind of case comes before a tribunal one of the first things that needs to be determined is whether the employee was in fact disabled at the time of dismissal. The Claimant argued that long COVID was simply an extension of COVID 19 and because she suffered from her COVID symptoms for a longer period of time than others of a similar age to herself it could have been predicted that she would develop long COVID.
The tribunal decided that she was not disabled in terms of the law. Crucially, this was because she was not diagnosed with long COVID until after she was dismissed. Part of the legal definition of disability is that there are long term adverse effects on your day-to-day life. Long term means has lasted or is likely to last more than 12 months. At the time of the Claimant’s dismissal she had only been unwell for less than three weeks.
The tribunal also held that whilst anyone suffering from COVID has the potential to develop long COVID, this does not happen for the majority of people, so it would not be accurate to say that it could have been predicted that the Claimant would be part of this group. It was also argued by the Respondent that after the Claimant’s period of isolation ended she returned to work and did not take any time off.
In a different case, the Employment Tribunal has previously held that long COVID can under certain circumstances be classed as a disability. However, in that case the employee had been off work for nine months due to serious fatigue.
This case will be welcome news to employers. It would be concerning if the tribunal were to allow this case to succeed on the basis of an alleged disability which, at the relevant time, had not actually been diagnosed. It should still be highlighted that employers need to be careful to follow the correct procedures when employees are unwell.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.