Caretaker, Terence Burke first contracted Covid-19 in November 2020 when he became absent from work. Whilst his symptoms were ‘very mild at first’ and ‘flu like’, he then developed severe headaches and fatigue. He was experiencing joint pain in his arms, legs and shoulders, lack of appetite and lack of concentration. He suffered with ‘fatigue and exhaustion’ and struggled to stand for long periods.
He took sick leave from work because he struggled to complete simple household chores and even missed a family funeral because of his extreme tiredness
In August 2021, Mr Burke was sacked on ill health grounds after he had not been to work for nine months with sick notes being extended by his doctor throughout that period.
The tribunal concluded Coronavirus had left him with “substantial and long-term” side effects and that Mr Burke’s long covid amounted to a disability under the Equality Act
Disability under the Equality Act 2010 is defined as a ‘physical or mental impairment’ that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.
‘Substantial’ is determined on a case-by-case basis but has to be ‘more than minor or trivial’. There are serious physical symptoms caused by long COVID, which could lead to time off and therefore trigger issues for the employer. Equally a mental health condition, or problems with memory or concentration, could also be regarded as substantial.
‘Long-term’ means it has lasted or is likely to last for at least 12 months or more, and there are signs that long COVID can last this long. An impairment is also considered to be long term if the effects are recurring or fluctuating. It is important to realise that long Covid affects people in different ways and to different degrees so not everyone with long Covid will be determined as having a disability.
A statement on EHRC's website about whether long Covid should be treated as a disability currently reads: 'There continues to be discussion of the various symptoms related to Covid-19 that are often referred to as "long Covid" and whether they would constitute a disability under the Equality Act.
'Given that "long Covid" is not among the conditions listed in the Equality Act as ones which are automatically a disability, such as cancer, HIV and multiple sclerosis, we cannot say that all cases of "long Covid" will fall under the definition of disability in the Equality Act.
'This does not affect whether "long Covid" might amount to a disability for any particular individual – it will do so if it has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This will be determined by the employment tribunal or court considering any claim of disability discrimination.
Following this preliminary hearing, Terence Burke can now bring a case in respect of discrimination arising as a consequence of disability, indirect disability discrimination and failure to make reasonable adjustments against his former employer.
What can employers do?
To support workers affected by ‘long covid’ and avoid the risk of inadvertent discrimination we would recommend employers:
- Get a medical assessment for the employee to confirm the diagnosis. This could help in understanding how long the ailments could last and provide clarity on how to make reasonable adjustments to support a possible return to work.
- Consider if the employee’s workload can be shared or temporary cover is available.
- Every case is different and it is imperative you seek legal advice to ensure you have the correct procedures in place.
- Explore all avenues and think carefully before a dismissal. Seek legal advice to ensure you are not faced with a costly tribunal claim.
This is a complex area of employment law so if you have any concerns or queries, please contact our employer specialist, Lisa Aitken on 01926 491181 or email: LisaA@moore-tibbits.co.uk
To read the full case, click here: https://www.bailii.org/uk/cases/UKET/2022/4112457_2021.html
Lisa Aitken | Employment Solicitor