The Covid-19 pandemic and its consequences on the health of the nation has long been considered. Now, in the recent case of Burke v Turning Point Scotland (2021), the Employment Tribunal was asked to consider whether symptoms of long Covid suffered by an employee satisfied the test for a disability under the Equality Act 2010 (‘The Act’).
Background
Mr Burke had been employed by Turning Point Scotland for 20 years. He tested positive for Covid in October 2020 and remained signed off from work until August 2021 at which point he was dismissed for ‘ill-health’. Mr Burke brought a claim against Turning Point Scotland for disability discrimination. The main issue for the Tribunal to consider was whether the long Covid symptoms could satisfy the definition of a disability under The Act.
Ruling
Long covid, in the first instance does not appear to satisfy the definition of a disability under The Act. A person is deemed disabled under The Act if they suffer from a physical or mental impairment which has substantial and long-term effects on their ability to carry out normal day-to-day activities.
The Employment Tribunal referred to TUC’s report about Workers’ experience of long Covid. The Tribunal found that Burke had his long Covid symptoms were consistent with impairing his normal day-to-day activities and had been for a significant amount of time as he had been off for several months. The effect long Covid had on Burke was more than minor or trivial and long term because it “could well” that it would last for a period of 12 months it was that he was dismissed before that point.
Conclusion
This has significant impact on employees. Whilst the Tribunal’s decision is in the first-instance and therefore, is not binding on other Tribunals, it will be interesting to see the impact it has on tribunal cases if employees believe they have been treated unfairly as a result of long Covid symptoms they may have been suffering with.
It would also be important for Employer’s to consider employee’s condition on a case by case basis and if in doubt, should seek legal advice before making a decision on the employee.
For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our LinkedIn page at https://www.linkedin.com/company/audley-chaucer-solicitors
October 2023
Molly Ross
Audley Chaucer Solicitors
