Long Covid – what employers need to know

There has been recent debate about whether the effects of Long Covid should or could amount to a disability.

Given that Long Covid is still relatively novel and symptoms vary there has, until now, been no concerted opinion as to whether the condition can be classified as a disability for the purposes of the Equality Act 2010 (EqA 2010).

What amounts to a disability?

A person has a disability under the EqA 2010 if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

The varying symptoms of Long Covid have fuelled the debate as to whether the condition itself can be classified as a disability under the EqA 2010, given that some sufferers have mild symptoms yet others, like Mr Burke below, have symptoms which leave them unable to work and seemingly cause a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Burke v Turning Point Scotland – The decision

The recent Employment Tribunal decision of Burke v Turning Point Scotland ETS/4112457/2021 ruled that, on the particular facts presented, Long Covid does amount to a disability.

For background, Mr Burke was a caretaker for Turning Point and had been since 2001.

In November 2020 he caught Covid and developed symptoms including severe headaches and fatigue, and he was unable to stand for long periods of time, rendering him unable to carry out his duties as caretaker.

As a result of his symptoms Mr Burke was on long term sick leave and was subsequently dismissed in August 2021 on the grounds of ill health.

Consequently, Mr Burke made a claim for disability discrimination.

The Employment Tribunal held that Mr Burke’s symptoms, including joint pain, a loss appetite, reduced ability to concentrate, difficulties in sleeping and his difficulty in standing for long periods of time amounted to a physical impairment which affected his ability to carry out normal day-to-day activities; therefore amounting to a disability under the EqA 2010.

So, what does this mean for employees and employers when managing sickness absence as a result of Long Covid?

Burke v Turning Point Scotland – The consequence

Employers must be mindful that Long Covid may amount to a disability and act appropriately when managing employees who are suffering from the condition.

As with any disability, reasonable adjustments should be accommodated so far as reasonably possible and any absences managed carefully.

If a dismissal is being considered, then a full and fair process should be followed to minimise the risk of a successful claim for disability discrimination.

Employers and employees should seek medical assistance to both diagnose Long Covid and, where appropriate, make recommendations for reasonable adjustments to support the employee in the work place.

What steps should you take?

Prior to the judgment in Burke v Turning Point Scotland, there was no set precedent or real indication that long Covid sufferers would be protected by the EqA 2010.

This decision is undoubtedly most welcome to employees and also to employers, given they now have clear guidelines as to how to cater for and treat employees who suffer from Long Covid.

If you have issues surrounding Long Covid and you want to know your rights as an employee or obligations as an employer, Mincoffs employment team can assist and provide the relevant advice you require.

Visit our employment law page or contact Nick Smith or Laura Liddle for more information