Despite the Equality and Human Rights Commission’s opinion in June 2022, a recent employment case has established that ‘long Covid’ can constitute a disability under the Equality Act 2010.
Burke v Turning Point Scotland
In this case, the employee worked as a caretaker for a charity and suffered with symptoms of long Covid including extreme fatigue, joint pain, lack of mobility, sleeplessness and general lack of energy.
Mr Burke was dismissed for his continuing absence from work, and lodged a claim against his employer for unfair dismissal and discrimination on the ground of disability and age.
The Employment Tribunal considered whether the employee was disabled within the meaning of the Equality Act 2010, which defines ‘disability’ as;
a ‘physical or mental impairment’ that has a ‘substantial’ and ‘long-term’ negative effect on a person’s ability to do normal daily activities.
It decided that the employee did have a physical impairment that had an adverse effect on his ability to carry out day-to-day activities as he could no longer walk to the shop to buy his paper as he previously had, needed help with chores such as ironing and cooking, and had difficulty following a TV programme. The effect of the impairment was more than minor or trivial, meeting the legal test, and the effect was ‘likely to last’ for at least 12 months.
The analysis of the symptoms of long Covid in this case meant that the relevant legal tests were met to satisfy the definition of disability.
How Moore Barlow can help
Businesses are still reeling from the impact of Covid and how best to adapt and support their workforce moving forward. Research from the Office for National Statistics shows that two million people were suffering symptoms of long Covid as of 1 May 2022. This case is therefore an important reminder to employers to adopt a cautious approach when it comes to managing employees with Covid or Long Covid.
If you would like further information and support on this, please do not hesitate to contact a member of our Employment team.
