Since the onset of the Coronavirus Pandemic, which saw the first national lockdown in March 2020, many legal firsts and legislative changes have impacted employment law. Whilst new changes to Covid guidance include the government’s Living with Covid Strategy, some employment law rights, especially those regarding long-term suffering of the disease, have not been overly clear.
One of the most significant is regarding long covid and whether this can be seen as a “disability” for the purposes of the Equality Act. However, in an Employment Tribunal hearing that recently hit the headlines, an employee with long-COVID was deemed disabled under the Equality Act 2010 –¹Burke v Turning Point Scotland – and could therefore bring a disability discrimination claim against his former employer. Importantly however, this was a preliminary hearing to determine whether he was disabled and whilst this decision sets a precedent, this decision is not binding; therefore, other tribunals can depart from this decision.
Whilst the ruling means the claimant can proceed with his disability discrimination claim, Mr Burke will still need a full Hearing before the Tribunal to determine if he actually suffered disability discrimination in relation to his long covid symptoms.
Overview of the case
The claimant, Mr Burke, was employed as a caretaker for Turning Point Scotland for around 20 years. In November 2020, Mr Burke tested positive for COVID-19 and as a result of his symptoms, he did not return to work. Noted symptoms experienced by Mr Burke included: headaches, fatigue, loss of appetite, joint pain, difficulty sleeping and exhaustion preventing him from standing for long periods of time. Turning Point obtained two occupational health reports during this period, one in April 2021 and the other in June 2021. Both reports concluded that it was “unlikely” that the disability provisions of the Equality Act 2010 would apply to Burke.
In August 2021, Mr Burke was dismissed on the grounds of ill health. The dismissal letter stated that due to the uncertainty of a date when Mr Burke would be able to return to full duties, it was with regret that he was being dismissed.
Consequently, Mr Burke made a claim for disability discrimination.
Despite the occupational health reports, the Tribunal held that Mr Burke had a physical impairment which had an adverse effect on his ability to carry out normal day-to-day activities, and this effect was more than minor or trivial and would last longer than 12 months. These factors met the test for the definition of a disability as set out in the Equality Act 2010. In those circumstances, the case should proceed to a hearing where the Tribunal will determine whether Mr Burke had suffered discrimination as a consequence of his disability. Given that the employer expressly dismissed Mr Burke due to his illness it seems that the Tribunal will not find it difficult to come to the conclusion that he was treated less favourably due to his disability.
Disability Discrimination Claims
Whilst a finding of disability does not automatically mean an employee cannot be dismissed for capability reasons, an employer must ensure that the decisions surrounding a dismissal do not directly or indirectly discriminate against employees with protected characteristics such as a disability. If a dismissal is being considered, employers should follow a full and fair process to minimise the risk of a successful claim for disability discrimination.
Following Burke v Turning Point Scotland there is a real possibility that there will be an increase in discrimination claims from employees suffering with the condition, especially where employers fail to handle these cases correctly.
ACAS has also issued sickness and absence advice for employers and employees dealing with ‘long Covid’. Most notably, when approaching the subject of whether it amounts to a disability, ACAS stated that ‘it is a good idea for the employer to focus on reasonable adjustments they can make rather than trying to work out if an employee’s condition is a disability.’
Discrimination claims and issues such as those that arose in this case involve many complex areas of law, and Employers should adopt a cautious approach when managing cases of suspected Long COVID that may be considered a disability under the Equality Act 2010.
If you are an employer or employee seeking advice regarding an employment law dispute or issues raised in this article, we can provide specialist advice and guidance. We regularly help employers and other organisations to comply with their obligations under the Equality Act, including reviewing and drafting equality, diversity, and inclusion (EDI) policies and procedures. Our highly experienced employment and dispute resolution teams also help with bringing or defending Equality Act Complaints.
Involving expert dispute resolution solicitors in assisting with any form of dispute is often essential as the parties will receive expert advice on the path a dispute should take and how to resolve the dispute in the most appropriate way.
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¹Burke v Turning Point Scotland ETS/4112457/2021