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Whilst some health experts are predicting that the end of the COVID-19 pandemic is in sight, a lingering problem for employers has been the phenomenon of "long Covid".
In this article, we look at long Covid through the lens of disability discrimination laws, including a recent landmark tribunal decision in this area.
What is long Covid?
The National Institute for Health and Care Excellence has defined "long Covid" as:
- Experiencing symptoms of COVID-19 for 4 – 12 weeks after infection; or
- Experiencing symptoms of COVID-19 for more than 12 weeks after infection and they cannot be explained by an alternative diagnosis.
Long Covid is a serious workplace problem for employers. A recent survey of hundreds of businesses by WorkNest revealed that a quarter of employers were facing long Covid absences.
The symptoms of long Covid can be unpredictable and vary significantly. Research by the University of Birmingham identified up to 62 symptoms linked to the condition, whilst the Office for National Statistics has reported that the most common symptoms are fatigue, loss of smell and shortness of breath. There have also been studies showing that individuals with pre-existing mental health conditions, such as depression and anxiety, are more likely to develop long Covid.
Those who suffer from long-standing COVID-19 symptoms could qualify as "disabled" under disability discrimination laws and be entitled to additional legal rights and protections.
What is required for a condition to be considered as a disability?
Under the Equality Act 2010, a person has a disability if:
(a) they have a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on the person's ability to carry out normal day-to-day activities.
Burke v Turning Point Scotland: employee's long Covid was a disability
In this case, Mr Burke's long Covid was found to be a qualifying disability. He had worked with his employer for 20 years and had first contracted COVID-19 in November 2020, when he only experienced mild symptoms.
However, Mr Burke's symptoms worsened, and he soon began suffering severe headaches and fatigue, which left him unable to complete household chores and damaged his concentration and sleep pattern.
Whilst his symptoms would sometimes improve, they would always return.
Occupational health advisers twice suggested to the employer that Mr Burke was unlikely to be disabled under the Equality Act and recommended a phased return to work. Mr Burke was unable to return to work and was dismissed in August 2021 on the grounds of ill health due to an ongoing 9-month absence from work.
Whilst the merits of Mr Burke's unfair dismissal and discrimination claims are still to be decided, this decision is the first of its kind and helps to flesh out our understanding of when long Covid might qualify as a disability. It is also a cautionary tale for HR practitioners against an over-reliance on occupational health advice.
What does this mean for employers?
Employers must be mindful that each case will turn on its own facts. This Scottish Tribunal's decision is not binding on other courts, and not all cases of long Covid will amount to a disability.
For example, in the recent case of Quinn v Sense Scotland, an Employment Tribunal found that an employee suffering from symptoms of long Covid did not meet the definition under section 6 of the Equality Act 2010, and therefore, her claims for disability discrimination were dismissed.
What was different about the Quinn case?
Mrs Quinn commenced employment on 9 December 2019. On 12 July, she tested positive for Covid-19 and experienced headaches, brain fog, and fatigue but returned to work. Her employer dismissed her on 27 July 2021. However, in September 2021, she was diagnosed with "long covid."
The difference between the facts of the Quinn case and the Burke case relate to whether the employee had long covid at the time of the dismissal.
The Tribunal concluded that Quinn had only been unwell for less than three weeks, and the Claimant's long covid diagnosis was not until after she was dismissed. The judge considered that the majority of people with COVID-19 do not go on to develop long Covid, and it was therefore not correct to say that, after three weeks, the Claimant's condition was likely to develop into long Covid.
Long Covid is here to stay. It is important that employers consider the possibility that employees with long-standing symptoms of COVID-19 could be considered disabled. Legal advice can be taken on how to manage such situations carefully and sensitively, and it is also helpful to review policies and procedures for managing sickness absences to ensure these are robust.