Does long COVID amount to a disability?
It can do.
By way of reminder, the Equality Act 2010 states a person has a disability if they have a ‘physical or mental impairment’ that has a ‘substantial and long-term adverse effect on their ability to carry out normal day-to-day activities’.
Employment judges will break down each part of the definition and apply it to a person’s individual circumstances to determine whether the definition is met. This is what happened in the following case Mr T Burke v Turning Point Scotland that highlights how a long COVID sufferer was deemed to be disabled under the Equality Act 2010.
Initial symptoms were mild
Mr Burke was employed as a caretaker for Turning Point Scotland from April 2001 to August 2021. He developed COVID-19 in November 2020 and initially his symptoms were described as being mild. But after getting over the initial illness, he went on to develop severe headaches and various symptoms of fatigue, including lack of energy/stamina and concentration. These persisted and prevented him from undertaking numerous normal activities such as cooking and walking to the shop.
Periods of fatigue
Although Mr Burke saw some progress with his symptoms, he explained that he hit peaks and troughs in terms of making progress, only to revert to periods of fatigue. He remained off sick for a period of nine months before he was dismissed and never returned to work after his initial infection.
Occupational health decision
Mr Burke’s dismissal was on the grounds of ill health and, further to that, he presented claims of disability discrimination and unfair dismissal. Before his employment ended, and as part of generally seeking to manage and support Mr Burke back to work, he was seen by occupational health which deemed him medically fit to return to work. The report did not advise that he was disabled but it appears he was seen in periods of improvement in his condition.
The employment tribunal (ET) found that his condition did amount to a disability. This was a preliminary hearing, and it remains to be seen whether his claims will succeed as they are yet to be heard. The full judgment can be found here.
The case is one of the first to determine that long COVID suffers can potentially meet the definition of being disabled under the Equality Act 2010. What is interesting is that the occupational health providers did not deem his condition to be a disability at the time of their assessment.
There are likely to be many more cases such as this that come before the employment tribunals. Each case will differ due to the varying symptoms sufferers complain of.
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