In a decision thought to be the first of its kind, an employment tribunal has ruled that an employee with long COVID symptoms was disabled within the meaning of section 6 of the Equality Act 2010.

 

Mr Burke was employed by Turning Point as a caretaker from April 2001. In November 2020, he tested positive for COVID-19. Initially, his symptoms were mild. However, after isolating, he developed severe headaches and fatigue. After waking, showering and dressing, he had to lie down to recover and struggled standing for long periods. He could not undertake household activities, like cooking, ironing and shopping. He experienced joint pain, a loss of appetite, a reduced ability to concentrate and difficulties sleeping. He also felt unable to socialise. The symptoms were unpredictable; he would experience improvement only to suffer from fatigue and exhaustion again. From January 2022, his health began to improve. However, sleep disruption and fatigue continued to affect his day-to-day activities.

 

Mr Burke remained off work from November 2020. Later fit notes referred to the effects of long COVID and post-viral fatigue syndrome. By contrast, two Occupational Health reports stated he was fit to return to work and that the disability provisions of the Equality Act 2010 were unlikely to apply. However, relapses of his symptoms (in particular, fatigue) meant that he did not return to work. He was dismissed in August 2021 because of his long-term absence and incapability to work on the grounds of his poor health and he brought disability discrimination claims, among other claims. 

 

As a preliminary issue, a tribunal had to determine whether Mr Burke was disabled during the relevant period. It concluded that he was. It considered that he was not exaggerating his symptoms and had a physical impairment (post-viral fatigue syndrome caused by COVID-19), noting that there was no incentive for him to remain off work when he had exhausted sick pay. The lack of particularisation within initial GP fit notes could be explained by the restrictions on in-person consultations at the time (though many employers and employment lawyers will note that ever prior to the pandemic it was not unusual to see fit notes that lacked detail or even correct completion!).  

The tribunal were satisfied that Mr Burke's physical impairment had an adverse effect on his ability to carry out normal day-to-day activities. This effect was more than minor or trivial and long term because it "could well" be that it would last for a period of 12 months when viewed from the dismissal date (the last alleged discriminatory act). The tribunal noted that the employer's own view was that there was no date when a return to work seemed likely.

Defining whether an employee is disabled for the purposes of an employment law claim is complex, and each case will turn on its facts.  This tribunal decision (which does not bind other tribunals) is not therefore authority for the proposition that any employee suffering from long COVID is disabled, but it is certainly a persuasive indication that Judges will be prepared to accept (at least in some cases) that it may be.  What is also certain is that this uncertainty, will not help employers know where they stand!