When is long COVID a disability?
17 November 2022
Taylor Bracewell
There have now been a couple of reported cases on whether long COVID can be considered to be a disability under the Equality Act. In the case of Burke v Turning Point Scotland, it was found that the employee, Mr Burke, who was absent from work with COVID-19 for nine months at the time of his dismissal, was considered to be a disabled person for the purposes of the Equality Act. Mr Burke had worked in his role as a caretaker since 2001 but had been unable to attend work for nine months after suffering substantial and long-term effects from COVID-19 after contracting the virus in November 2020. As a result of this finding, Mr Burke was allowed to continue with his claims for disability discrimination.
There has been a further case on this issue in the Employment Tribunal. In Quinn v Sense Scotland the tribunal decided that an employee who caught COVID-19 2.5 weeks before her dismissal was not a disabled person. Mrs Quinn experienced a number of symptoms associated with long COVID, for example, shortness of breath, pain, headaches, brain fog and fatigue. Some weeks after her dismissal she was diagnosed with long COVID by her GP.
Mrs Quinn brought a direct disability discrimination claim. The Employment Tribunal had to decide if she was a disabled person for the purposes of the Equality Act. The legal test here is whether the impairment of COVID-19 had a substantial adverse effect on her ability to carry out normal day-to-day activities, and was long-term in nature. The tribunal found that she wasn’t a disabled person and made the following comments:
- Her condition could have a substantial adverse effect on her ability to carry out normal day-to-day activities, but the condition was not and could not be expected to be long-term at the time she was dismissed.
- Generally speaking, most people who test positive for COVID do not go on to suffer from long COVID and therefore it would not be reasonable to assume an employee would.
Employers do not need to assume long COVID will arise where the employee has only very recently become unwell. However, if the employee continues to be unwell, and it seems there is the possibility that they are experiencing long COVID at the time of their employment then great care should be taken by the employer not to discriminate against them. There is a risk that the employee may be considered to be a disabled person for the purposes of the Equality Act. Ultimately each case will turn on its own facts.
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