Long COVID: Employee did not have disability when dismissed

An Employment Tribunal has ruled that a Claimant was not disabled under the Equality Act when she caught COVID two and a half weeks before her dismissal.

This is the second decision on long COVID this year, the Employment Tribunal having previously ruled in the Burke case that the symptoms of long COVID could satisfy the definition of disability (see our blog here).

Although both cases are first instance decisions and therefore not binding, they contain useful reminders about how fact-sensitive the issue of disability is and how it should be approached.

Brief facts

Mrs Quinn tested positive for COVID on or around 11 July 2021. She experienced fatigue, shortness of breath, generalised aches, pain and discomfort, headaches, and brain fog, which negatively affected many aspects of her everyday life and disrupted her sleep.

Mrs Quinn first contacted her GP on 26 July 2021.  The following day, on 27 July 2021, she was dismissed. It was not until 12 September 2021 that Mrs Quinn was diagnosed by her GP with long COVID.

Decision

The Employment Tribunal found as a preliminary issue that Mrs Quinn was not disabled at the time of her dismissal.  At that point, she did not have long COVID.

Whilst COVID itself had had a substantial adverse effect on her ability to carry out normal day to day activities, this effect had only lasted two and a half weeks.  She was not diagnosed with long COVID until around 6 weeks after her dismissal. The Tribunal accepted that “the substantial majority of people” with COVID do not develop long COVID and do not suffer from it for more than a year, so it could not be said that the risk “could well happen”.

In contrast, at the time of Mr Burke’s dismissal, he had been off sick with COVID for nine months.  

Reminders for employers

• The question of disability depends on the circumstances of each specific case.
• Timing is important. You must look at what the precise impact of COVID or long COVID is, based on the information available at the time of the discriminatory act complained of.
• An impairment may not be likely to last for 12 months at the time of the alleged discrimination, even if it does in fact go on to last for a prolonged period.