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Recent ONS figures estimate that 1.8m people (or 2.8% of the UK population) are currently experiencing long COVID symptoms, typically including fatigue, shortness of breath and difficulty concentrating. Of those affected by the condition, at least 44% reported symptoms lasting for at least one year, and 13% have suffered for at least 2 years.

In their recent statement, the EHRC made it clear that whilst long COVID is not among the conditions listed in the EqA which automatically constitute a disability (such as cancer, HIV and multiple sclerosis), it could amount to a disability under the EqA if a particular case fits the criteria set out in section 6 of the EqA.

Section 6 confirms that a person has a disability if they have a physical or mental impairment, which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Burke v Turning Point Scotland

In the Burke -v- Turning Point Scotland case, Mr Burke had been employed as a caretaker for a charity for around 20 years. He contracted COVID-19 in late 2020 and although his initial symptoms were relatively mild, he later suffered from more severe symptoms including extreme fatigue, sleep disruption, loss of appetite, joint pain, anxiety, and headaches. He was absent from work from November 2020 until his dismissal in August 2021.

Mr Burke provided Turning Point with a number of fit notes in the course of his absence from work reporting fatigue, post-viral syndrome, and the after-effects of long COVID.

Turning Point obtained an occupational health report in April 2021 which confirmed that Mr Burke’s symptoms had improved, that he would be in a position to return to work, and that it was unlikely that he was disabled for the purposes of the EqA. However, Mr Burke did not return due to continued daytime sleepiness and subsequently, Turning Point obtained a further occupational health report in July 2021. This report specifically considered Mr Burke’s ongoing symptom of daytime sleepiness and again stated that it was unlikely that he met the test for disability under the EqA.

In August 2021, Mr Burke was dismissed by Turning Point on the grounds that he was incapable of performing his role due to his ill-health. Mr Burke responded by bringing about claims for unfair dismissal, failure to pay redundancy pay and discrimination related to his age and disability.

At a preliminary hearing on the specific issue of whether Mr Burke was disabled for the purposes of the EqA, the ET held that:

  • Mr Burke suffered from a physical impairment – that being either long COVID or post viral fatigue syndrome. The tribunal found that either condition had arisen from Mr Burke contracting COVID-19 in November 2020.
  • Mr Burke was not exaggerating his symptoms, as insinuated by Turning Point based on only brief details of Mr Burke’s symptoms having been reported by his GP.
  • Mr Burke’s symptoms did have an adverse effect on his day-to-day activities. Mr Burke gave evidence that he was unable to walk to a nearby shop to collect a morning paper as he had done prior to contracting COVID-19. He also struggled to read for any length of time or to follow a TV programme. He experienced disturbed sleep, and all of this affected his ability to properly engage with daily life.
  • The effect of Mr Burke’s symptoms was substantial. Although the seriousness of the effects varied over time, it appeared to the ET that the overall effect was more than minor or trivial.
  • As neither Mr Burke nor Turning Point could say when a return to work was likely, the ET decided that as the symptoms “could well” last for 12 months or more, Mr Burke had established that the long COVID symptoms were long-term.

On the basis of the above, Mr Burke was deemed to be disabled for the purposes of the EqA as he had met the relevant statutory test. The substantive claims remain to be heard by the tribunal.

What does this mean for employment law in England & Wales?

Employers should note that whilst this decision is from a Scottish ET and is non-binding, there is a strong chance that, in the future, employees suffering from the effects of long COVID will be able to establish that they have a disability, should their symptoms meet the statutory test.

As the ONS statistics from May 2022 suggest, long COVID symptoms were reportedly affecting the day-to-day activities of 1.2m people in the UK. 19% of these people said that their ability to carry out normal day-to-day activities had been “limited a lot”.

What should employers do for employees with long COVID symptoms?

Employers should be mindful that long COVID may well be classified as a disability under the EqA. They should, therefore, be careful not to discriminate against employees who report long COVID symptoms.

Employers should first determine the effect that long COVID symptoms are having on the affected employee and how long they have been suffering with these symptoms. This will help employers to establish whether the individual is likely to be classed as disabled under the EqA.

Where the employer believes, or has reason to believe, that the employee is disabled they should:

  1. Where the employee returns to work after having been unwell with COVID-19 or long COVID, ensure that a return to work is completed to establish what support might be needed.
  2. Consider whether any additional risk assessment needs to be carried out to take into account the effects of long COVID.
  3. Consider whether they should obtain medical advice on the effects of the employee’s condition, either through a referral to occupational health or directly seeking a report from the employee’s GP (ensuring they are compliant with the provisions of the Access to Medical Records Act).
  4. Consider whether any reasonable adjustments need to be made to help the employee overcome any substantial disadvantage faced as a result of the effects of long COVID. Examples of reasonable adjustments may include:
    • Adjusting trigger points in sickness absence procedures to reflect the fact the employee may need additional time off work sick;
    • Allowing the employee to work flexibly (i.e. from home to reduce travel) or adapting working patterns to accommodate employees who suffer with fatigue or exhaustion as a result of long COVID symptoms;
    • Adapting workstations to alleviate any joint or muscle pains the employee may be suffering from as a result of long COVID.
  5. Ensure employees are aware of any support or assistance that they may be able to access through any employee assistance programmes or private medical cover offered by the employer.

Overall, crucial to all of the above steps, is effective communication between the employer and the employee. This will help the employer to establish what action may be needed and will prevent employees from feeling poorly treated because of their condition, which should reduce the risk of employment disputes arising.

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