What is the case about?
Two years on from the start of the pandemic, we have started to see judgements come through in COVID-19 related employment tribunal cases. The latest one is regarding Long COVID-19 and specifically deals with whether in the circumstances of this particular case, the condition amounted to a disability for the purpose of the Equality Act 2010 and therefore was the employee discriminated against when he was dismissed from his work due to ongoing sickness absence relating to Long COVID.
In this case, Mr. Burke was employed by Turning Point, Scotland as a charity caretaker. He caught COVID-19 in November of 2020 and suffered initially with mild symptoms, describing them similar to “flu like” symptoms.
However, as time passed, his symptoms evolved and worsened which lead to him developing severe headaches and extreme fatigue. He described the fatigue as severe in that it impacted on his ability to carry out day to day activities.
For example, he explained how after waking and showering in the mornings he would need to lie down to rest because of the significant exhaustion. He also described how his ill health affected other normal day to day activities such as walking to the local shop, being unable to stand for long periods of time or having difficulties in concentrating on simply activities like watching TV.
He suffered with joint pain and found his symptoms to be unpredictable. These symptoms continued and evolved over time, whilst some lessened, he did start to experience new symptoms such as difficulties with sleeping.
In April 2021, he was referred to Occupational Health (OH) which in summary, indicated, the symptoms were decreasing, the quality of his sleep had improved, and he had started to undertake light exercises, therefore he himself said he was keen to get back to work, to which the OH team confirmed that they believed him to be fit for work.
Long COVID symptoms
However, after this, he reported his symptoms had worsened again and described how they continue to be in peaks and troughs with extreme fatigue, consequently received a further fit note from his GP and a further OH referral. This time, the assessment concluded that if he is seated with little distraction, he can fall asleep, but remains alert if kept busy.
Both Occupational Health reports, provided a medical view by the physicians that it was unlikely Mr. Burke’s ill health would fall in scope of the legal definition of what constitutes a disability for the purpose of the Equality Act 2010.
Mr. Burke continued to remain unwell to attend work and his GP eventually signed his fit notes with the reason of “post viral fatigue syndrome”.
Separate to this in June 2021, the company announced changes to their organisational structure which directly impacted Mr. Burke and therefore led to formal consultations commencing. As part of the process, he raised concerns about proposed role changes for him which he felt was not a match for his existing role, and others also felt they were effectively being made redundant.
Before any further formal consultation meeting could be heard, Turning Point commenced proceedings in regard to his ongoing employment which resulted in his dismissal due to his capability.
The company believed he was too ill to return to work and that there was nothing further that could be adjusted to support returning to work. As a charity, they could not continue to keep his role open and dismissed him on capability grounds.
He was dismissed in August 2021 for the continuation of absence from work due to Long COVID.
The tribunal considered whether his ill health fell within the scope of the legal definition of disability and in summary found that:
- The physical impairment in this case was “post viral fatigue syndrome” or “long COVID” and that it arose out of him contracting COVID-19. Information on COVID-19 from the TUC includes the phenomenon of Long COVID as being a recognised difficulty and highlights how symptoms fluctuate.
- The impairment that he therefore had did result in adverse effects on his ability to carry out normal day to day activities, such as not being able to walk to the local shop, help in chores around the home or reading for any length of time. Furthermore, the symptoms were substantial which meant they were more serious than minor or trivial.
- It was viewed that the effect of his ill health was long term as it was likely to last for a period of 12 months
The judge therefore ruled that Mr. Burke had been discriminated against and that his ill health met the legal test of disability as defined in the Equality Act 2010.
You can read the judgement here.
This is a landmark ruling when it comes to Long COVID and although the ruling was in favour of the claimant in these circumstances, it is not an indicator of future case outcomes which deal with ill health and Long COVID.
The employee’s ill health must meet the legal definition of a disability as is defined within the Equality Act 2010, which is “a person has a disability 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”.
We would always advise seeking medical advice when managing an employee’s ill health and definitely seek medical advice before any decision is taken to end employment. Failing to do so, would render the dismissal unfair and risks claims of discrimination too, in the event where the ill health meets the legal definition of a disability.
Whilst ultimately it is up to the Employment Tribunal to determine whether in the circumstances, the medical condition fell within the legal definition, employers must be careful in their own considerations when seeking to understand if an employee’s ill health is likely to fall in scope of the legislation.
There are key phrases within the disability definition which we recommend employer’s give serious consideration to, these are:
- The fact that the health issues do not have to be physical, it can include a mental impairment.
- The impairment that the employee suffers is substantial, i.e. more than trivial.
- It must also be long term; either they have suffered from the condition for at least 12 months, or they are likely to continue to suffer from the condition for at least 12 months.
- The effects of the condition must impact the employee’s ability to carry out normal day to day activities.
Given we are now two years on from the start of COVID-19, and we continue to receive reports by the Office for National Statistics relating to who has Long COVID, this is a significant case ruling for employers.
We expect to see more tribunal claims in respect of Long COVID and so, would recommend seeking HR advice before making any decision on the continuation of an employee’s employment because of ill health that has arisen as a result of the Coronavirus.
If you would like more information on this topic, or would like to enquire about how we can help your business, please contact us