Why we should care

According to the Office for National Statistics, an estimated 2 million people in the UK are reported to be suffering with 'long COVID'. Long COVID presents with a variety of symptoms, but common symptoms include fatigue, shortness of breath and 'brain fog'. The Equality and Human Rights Commission caused controversy in early May 2022 when it indicated that it did not recommend long COVID to be treated as a disability. It has since revised its stance, making clear that while long COVID is not automatically a disability (such as cancer and HIV, which are specifically listed), it may meet the definition, depending on individual circumstances.

In Burke v Turning Point Scotland, an employment tribunal recently held that on the facts of that case, long COVID did constitute a disability. To amount to a disability under the Equality Act 2010 (EqA 2010), someone must have a long-term physical or mental impairment which has a substantial adverse effect on their ability to carry out normal day-to-day activities. It may not always be clear whether a particular condition, including long COVID, is to be classed as long-term.  To be classed as long-term, the condition must have lasted or be likely to last 12 months or more (or the rest of the person's life). Employers need to be aware if an employee is suffering with the symptoms of long COVID, as they may have protection from discrimination and require reasonable adjustments to their role. Part of the challenge, as with any illness with disparate symptoms, will be to know whether someone is malingering or whether there is in fact an underlying condition behind absences.

Facts

Mr Burke was employed at Turning Point Scotland as caretaker/security. He worked there for over 20 years, from 23 April 2001 up until the date of his dismissal on 13 August 2021. Mr Burke was absent from work from 15 November 2020, when he tested positive for COVID-19, until his dismissal. His employment was terminated because of his continued absence from work.

A preliminary hearing was held to decide whether Mr Burke was disabled for the purposes of the EqA 2010 during the period from 25 November 2020 (after his isolation period) to 13 August 2021. Turning Point Scotland accepted that Mr Burke had a physical impairment between 25 November 2020 and 16 June 2021 caused by COVID-19, but not afterwards. The other limbs of the test under the EqA 2010 were not accepted. In effect, the tribunal had to decide whether Mr Burke was exaggerating his symptoms.

During the hearing, Mr Burke confirmed that he developed fatigue and severe headaches. He reported a variety of other fluctuating symptoms, including struggling to stand for long periods, joint pain and being unable to do some domestic chores. The latter was backed up by the witness evidence of Mr Burke's daughter.

• Some of Mr Burke's fit notes issued were not clear as to the reason for his absence. For example, on one of the fit notes Mr Burke was advised to speak to his doctor to "clarify symptoms".
• Two occupational health (OH) reports were obtained during his absence, which advised that it was unlikely his condition would amount to a disability. The first report in April 2021 stated that he would be medically fit to return to work. At this point, Mr Burke was keen to return to work, only for his symptoms to exacerbate again. The second OH report in June 2021 suggested that his 'episodes of daytime sleepiness' were not of significant medical concern.

Decision

The tribunal held that Mr Burke's long COVID was a disability under the EqA 2010 for the entire relevant period. The tribunal was convinced by the witness evidence of Mr Burke and his daughter.

The tribunal accepted that his symptoms would fluctuate. Referring to the fact that some of the fit notes were unclear as to Mr Burke's symptoms, the tribunal linked this with the restrictions on 'in-person consultations' during this time.  The tribunal felt that there was no financial benefit to remaining off work because Mr Burke stopped receiving sick pay in approximately June 2021. As he had 20 years' service, the tribunal found it unlikely that he was pretending to be unfit for work.

In determining whether the long COVID was 'long-term', the tribunal was influenced by the fact that Turning Point Scotland had themselves stated in their dismissal letter that Mr Burke was too ill to work and there did not appear to be a potential date when Mr Burke would return to full duties.

Why the case matters

This is a first-instance decision, so is not technically binding on future cases. This judgment illustrates the importance of understanding the reason for an employee's absence. Long COVID can present itself within the workforce, even when there is mixed medical evidence. As a general rule, employers need to be sensitive when challenging medical evidence, particularly if there is a concern that an employee has a disability. Nevertheless, if an employer is not satisfied with the medical evidence or fit notes provided to them, they should consider making their own enquiries. A practical approach should be taken. Employers should speak to employees suffering with long COVID, or any of the symptoms of long COVID, to understand their condition and to see what can be done to assist them at work.