20/09/2022

It is fair to say that the effects of the Covid-19 pandemic will be felt for many years to come, despite the removal of most restrictions and life returning to how we once knew it. Whilst economic recovery has evolved into a ‘post pandemic boom’, there are undoubtedly more longer lasting implications for health and wellbeing, most notability with the diagnosis of ‘Long-Covid’.

Whilst Long Covid is a relatively new illness that will take time to understand fully, it is clear that it can substantially affect a person’s day-to-day activities for months and even years.  The effects of Long Covid may also impact other impairments making a person generally debilitated.

But can long COVID amount to a disability for the purposes of the Disability Discrimination Act 1995? Unsurprisingly, in Great Britain an Employment Tribunal has recently found that in certain circumstances it can. (see Burke -v- Turning Point Scotland)

Mr Burke was employed as a Caretaker. On 15 November 2020, he contracted Covid and began isolating at home. Whilst Mr Burke’s symptoms were mild at first, he gradually became more unwell. Mr Burke remained off sick until his dismissal on 13 August 2021 on grounds of ill health; later fit notes referred to the effects of Long Covid and post-viral fatigue syndrome. The letter of dismissal cited “the uncertainty around a potential return to work date” as the reason for dismissal.

A Preliminary Hearing was held on 18 January 2022 to consider if Mr Burke was disabled within the legal definition. The Tribunal applied the legal test asking if Mr Burke had a physical or mental impairment, which had a substantial and long-term adverse effect on his ability to carry out normal day to day activities.

The Tribunal heard that after the isolation period Mr Burke had developed severe headaches and symptoms of fatigue which affected his normal day to day activities. Mr Burke was unable to carry out normal daily activities such as cooking, ironing, and shopping. He experienced fatigue and exhaustion after showering and dressing which required him to lie down and rest. He struggled to stand for extended periods. This was exacerbated by joint pains in his arms, legs, and shoulders. He also experienced loss of appetite, poor concentration and he described his sleep pattern as “wrecked.” Mr Burke did not feel well enough to socialise or attend important events such as his uncle’s funeral, which was out of character for him.

This, the Tribunal found, amounted to a disability within the legal definition. In its judgment, the Tribunal noted that such is the nature of Long Covid that it is difficult to predict when it may be resolved.

This is only a first instance preliminary judgement on the issue of whether Mr Burke’s condition amounted to a disability and therefore not binding in Northern Ireland or indeed on other Tribunals. The full case on merits is yet to be determined. However, the case makes it abundantly clear that Long Covid can amount to a disability, but each case will depend on its own particular facts. The case does not mean that every employee with Long Covid will be disabled within the law.

It is noteworthy that two Occupational Health reports had stated Mr Burke was fit to return to work and that the disability provisions of the legislation were unlikely to apply. This serves as a reminder to Organisations about assessing the overall context of a person’s health and not solely relying on Occupational Health’s assessment of whether the legal definition is met. Tribunals regularly remind parties that only they (the Tribunal) can determine if a person is disabled within legal definition and that the decision should not be wholly delegated to Occupational Health.