An employment tribunal has ruled that Mr Burke’s symptoms of long COVID satisfied the Equality Act’s definition of disability. This is believed to be the first decision at any level to consider how the definition should be applied where a claimant has this medical condition.
In its most recent survey the Office for National Statistics estimates that there were as many as 2 million people with symptoms of long COVID at the beginning of May. More than half of these people had been infected more than a year ago, and a fifth said that their symptoms had affected their ability to go about their day-to-day activities “a lot”.
So it is not surprising that an employment tribunal has confirmed that Mr Burke, who had suffered from intermittent but severe fatigue for the best part of a year, was a disabled person. Although not binding on other tribunals, this decision provides a useful illustration of the difficulties both claimants and respondents could face in cases involving long COVID.
Clear medical evidence can be difficult to obtain
In the absence of any recognised test for long COVID, it can be hard to get a definitive medical opinion on whether a worker has the condition or not. In this case the occupational health reports conflicted with the GP records, which were incomplete because of Mr Burke’s limited contact with his GP during the pandemic.
However, all a worker needs to show is that they have an impairment. While a medical diagnosis will certainly help, they only have to prove the they have an impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
When concluding that Mr Burke had such an impairment, the tribunal relied partly on the employer’s own assessment of his condition, which they had used to justify terminating his employment on health grounds. It also relied on Mr Burke’s own evidence, and that of his daughter.
Long COVID is unpredictable
It was not easy for the tribunal to decide whether the claimant’s impairment was long-term at the point the discriminatory acts took place: ie was it likely to last more than 12 months at that point? We now know that the symptoms of long COVID are often intermittent, and the time from diagnosis to full recovery difficult to predict.
In this case, the employment tribunal decided that although it had not lasted a full 12 months when Mr Burke was dismissed, it was likely to last at least that long at that point and should therefore be considered a long-term impairment.
Best practice is still evolving
ACAS first published guidance on dealing with Long COVID in the workplace last year. As with other long-term health conditions, employers “should make sure they have done everything they can before considering a capability procedure”. This could include offering more flexible working conditions, workplace adjustments or offering other support
However, it will not always be easy to work out the best approach. The ACAS guidance points out:
Employers should be aware that the effects of long COVID can come and go. On some days the person might seem well, but on others their symptoms can be worse and they might need to be off work again.
We don’t know what the final outcome of Mr Burke’s claim will be. It is not a foregone conclusion that he will succeed, though Mr Burke will no doubt argue that his employers could and should have waited a bit longer before ending his employment on health grounds.