Is Long Covid a disability?
23rd June, 2022
Many employers will be dealing recently with employees who have been absent due to Covid, including those who were shielding or self-isolating.
One question that has been asked often is whether or not ‘long Covid’ would amount to a disability. A recent Employment Tribunal judgment has held that it can.
In Burke v Turning Point Scotland (2022), an Employment Tribunal had to consider whether the employee, a caretaker who worked for a charity that provided services to those with learning disabilities and mental health conditions, was a disabled person. Although he initially only had only mild flu-like symptoms after testing positive, his condition worsened. He suffered from headaches, fatigue, joint pain, loss of appetite, and difficulties concentrating and sleeping. He had difficulty washing, showering, cooking, ironing and shopping, and had been unable to attend a family member’s funeral. Despite this, the advice from Occupational Health was that he was fit to return to work, and unlikely to be disabled. He was eventually dismissed, and brought claims of unfair dismissal and disability discrimination.
One point the Tribunal also had to consider was that the employee’s Fit Notes were issued after telephone consultations only, as there were no in person consultations at that time, which would explain why there were not as detailed as they might have been.
The Tribunal concluded that the employee was a disabled person. The impairment was post viral fatigue syndrome, as a consequence of Covid. The test for whether or not a person is disabled also includes whether the condition causes a long term and substantial effect on their ability to carry out their normal day to day activities and his description of the impact met that. Although each case will be decided on its facts, this is an early indication of the approach tribunals may take.
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Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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