Long COVID satisfies the tests to meet the definition of disability

Background

Turning Point is a charity providing services to people with learning disabilities, those suffering from a range of mental health conditions and from homelessness. Mr Burke worked for Turning Point as a caretaker for around 20 years until his employment was terminated in August 2021 because of ongoing sickness absence.

Mr Burke contracted COVID-19 on 15 November 2020 and had to self-isolate. Although his symptoms were very mild at first, he did not in fact return to work at all. After the isolation period, he developed severe headaches and symptoms of fatigue. He stated that after waking, showering and dressing, he would have to lie down to rest from fatigue and exhaustion. He also struggled to stand for long periods and he lacked the energy to carry out household chores. He developed joint pain in his arms, legs and shoulders, he suffered from a lack of concentration, had difficulties sleeping and did not feel well enough to socialise.

At certain times, Mr Burke felt that his symptoms were improving but he suffered from intermittent fatigue and exhaustion and this unpredictability made him anxious. Disrupted sleep was the main concern although there was also some flare up of joint pain. Those symptoms continued to affect Mr Burke’s day-today activities in carrying out domestic chores and affected his concentration.

Various GP fit notes were issued through to July 2021. These indicated that Mr Burke was suffering from the “after effects of long COVID” and “post viral fatigue syndrome”. Because of the restrictions on “in person” consultations, contact with the GP was by telephone and sometimes only with the GP’s receptionist.

Turning Point referred Mr Burke to occupational health. He attended a telephone assessment in April 2021 and a report was prepared the same month. This stated that Mr Burke was “medically fit to return to work” with advice given regarding a phased return. In addition, it stated that it was “unlikely” that the disability provisions of the Equality Act 2010 would apply. A second occupational health report referred to episodes of daytime sleepiness and once again, that it was “unlikely” that Mr Burke had a disability.

Mr Burke’s contractual sick pay ended in June 2021.

Another fit note was issued on 1 July 2021 with the diagnosis “post viral fatigue syndrome”.

Around the middle of June 2021, Mr Burke was told that Turning Point’s drug crisis operation would be combined with the homelessness services which would affect Mr Burke and others. A formal consultation meeting was held but before the second consultation meeting took place, Turning Point dismissed Mr Burke with effect from 13 August 2021 on the grounds of ill-health. Turning Point had concluded that Mr Burke was too ill to return to work and there were no adjustments it could make to his duties or work environment that would make his return more likely.

Mr Burke brought claims of unfair dismissal, disability and age discrimination and failure to pay him a redundancy payment.

Turning Point denied all these claims and raised time bar and disability status as preliminary issues.  There was a preliminary hearing to consider the issue of whether or not the Mr Burke was a disabled person for the purposes of the Equality Act 2010 (the Act).

The law

Disability is a “protected characteristic” under the Act and the definition of disability is contained in section 6(1):

When dealing with any disability discrimination issues in the workplace, it is also essential to be aware of the following:

• The Equality Act 2010 Employment Statutory Code of Practice, (EHRC Code) which provides a detailed explanation of the Act including the types of discrimination that can arise.
• The statutory Guidance on matters to be taken into account in determining questions relating to the definition of a disability. This stresses that it is important to consider the things that a person cannot do or can only do with difficulty.

Employment Tribunal

In establishing whether or not someone has a disability, the Act’s definition requires that four separate questions need to be addressed separately and sequentially:

• Does the individual have a physical or mental impairment?

The physical impairment relied on is “long COVID” or “post viral fatigue syndrome”. This arose out of Mr Burke contracting COVID-19 in November 2020 and the phenomenon of long COVID (and its fluctuating symptoms) is recognised as a possible outcome. The TUC report “Workers experience of long COVID” reflected the symptoms suffered by Mr Burke. The Employment Tribunal did not consider that Mr Burke exaggerated his symptoms even though the fit notes did not particularise the issues that affected him. He had worked for Turning Point for 20 years and that length of service did not suggest that he was likely to be pretending to be unfit for work when he was not. Further, there was no financial benefit to Mr Burke in remaining off ill. Turning Point was in possession of the GP fit notes, it took into account what was said in the two occupational health reports and it also had the benefit of Mr Burke’s own account of his symptoms and health condition. It was their own conclusion that Mr Burke was “too ill to return to work” and this reinforced the view that Mr Burke’s account was credible.

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

The Employment Tribunal accepted Mr Burke’s (and his daughter’s) evidence that the impairment did have an adverse effect on day- to- day activities. His account included what he could not do and his sleep was also disturbed.

• Is that effect substantial?

“Substantial” means more than minor or trivial. Mr Burke was not able to do the cooking and ironing, walk to the shop nearby, sleep through the night, concentrate for any length of time and even when his symptoms improved, fatigue still affected him badly and there could be a flare up of joint pain. The effect of the impairment on his ability to continue with day-to-day activities was more than minor or trivial.

• Is that effect long-term?

The effect of an impairment is long-term 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.

The fluctuating nature of long COVID means that it is very difficult to predict when it may be resolved. Mr Burke was dismissed on 13 August 2021 and the dismissal letter stated that it was not known when, if at all, Mr Burke would be fit enough to return to work. Taking 13 August 2021 as the last date of the alleged discriminatory acts, it would appear that the impairment and its substantial effects would have lasted until the end of November 2021 (12 months after Mr Burke had COVID -19) and as a result, this complied with the condition that the substantial adverse effect was “long-term” meaning that it was likely to last for a period of 12 months.

The Employment Tribunal held that the relevant tests met the definition of disability and that Mr Burke was a disabled person in the period 25 November 2020 to 13 August 2021. The case will proceed to a hearing in respect of discrimination arising as a consequence of disability, indirect disability discrimination, and failure to make reasonable adjustments.

Comment on long COVID and disability

Until very recently, the rate of COVID-19 infections was falling across the UK but that is no longer the case. The number of people affected by long COVID has increased continuously even when COVID-19 infections were falling. According to ONS statistics published on 1 June 2022, as at 1 May 2022, an estimated 2 million people in the UK are experiencing self-reported long COVID (up from 1.8 million the previous month).

The Burke decision is potentially very significant as the Employment Tribunal held that the effect of long COVID on Mr Burke met the elements of the definition of disability. With the publicity that the decision attracts and the ongoing prevalence of long COVID, it is inevitable that more long COVID disability cases will be brought in the months ahead. However, long COVID affects people in different ways. In another case, with different facts, the Employment Tribunal may come to a different conclusion. Whether or not long COVID does meet the definition of disability will depend on its effect on the individual concerned. Finally, it is important to point out that this Employment Tribunal decision is not binding on other Employment Tribunals.

We considered whether or not long COVID was a disability in our previous article Long COVID: what employers need to know and the steps employers can take to support staff suffering from long COVID.