Employee succeeds with discrimination claim after reprisals for expressing gender-critical opinions
The case of Forstater -v- CDG Europe has captured the attention of the international media since 2019.Read more
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.
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:
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.
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”.
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:
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.
If you require any assistance or advice about handling long COVID cases in the workplace, please contact a member of our Employment team on 01332 226 155 or fill in the form below.
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