Employees and Long Covid

Employers, particularly those with workers or employees suffering from Long Covid, will want to keep an eye on the case of Burke v Turning Point Scotland

Although only a decision at first instance, so other employment tribunals do not technically have to follow suit, it is the first time that a reported case has ruled that under the Equality Act 2010, an individual suffering from ‘Long Covid’ meets that statutory definition of ‘disabled person’. 

This may turn out to be a significant judgment particularly following an interchange on Twitter back in May 2022 by the Equalities and Human Rights Commission (EHRC) who rather unhelpfully initially suggested that “Discussions continue on whether ‘long COVID’ symptoms constitute a disability. Without case law or scientific consensus, EHRC does not recommend that ‘long covid’ be treated as a disability.” 

They did follow this with a more accurate analysis of “it depends” and suggest that employers continue to make reasonable adjustments as per individual requirements. As employers will no doubt be aware, the Equality Act 2010 lists in fact only three conditions by name - cancer, Multiple Sclerosis (MS) and HIV - all disabilities from the date of diagnosis. Any other condition might be a disability if the effects of that condition meet the conditions of the Equality Act 2010.

Whilst Burke v Turning Point Scotland was fact specific, employers will want to consider the decision carefully where they are aware that employees and and workers suffer from Long Covid - as it will not just affect absence but how performance is managed, as well as the obligation under the act to make ‘reasonable adjustments’. 

For those with employees with Long Covid, it would be helpful to consider the four separate questions under the Equality Act 2010 that need to be addressed separately and sequentially, as well as the statutory guidance found in the The Equality Act 2010 Employment Statutory Code of Practice. The questions are: 

Does the individual have a physical or mental impairment?

Does the impairment have an adverse effect on their ability to carry out normal day-to-day activities?

Is that effect substantial?

Is that effect long-term? This is defined as “if it has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected”.

If employers are wondering whether an employee has Long Covid or not, they can refer to the National Institute for Health and Care Excellence (NICE) definition which defines Long Covid as "signs and symptoms that develop during or following an infection consistent with COVID-19 which continues for more than 12 weeks and are not explained by an alternative diagnosis".

Employers can also refer to the current ACAS guidance Long COVID advice for employers and employees and continue to ensure that they have made reasonable adjustments, are following guidance in The Equality Act 2010 Employment Statutory Code of Practice and take proactive steps to continue to review policies and procedures.

It should also be noted that in Burke v Turning Point Scotland the relevant decision was whether or not the claimant was a disabled person in the relevant period when the alleged discriminatory acts took place, which was a defined period of nine months. The disability does not therefore necessarily need to be ongoing or even still ongoing at the time the claim is brought.

Posted on 07/07/2022 by Ortolan

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