The recent Scottish case of Burke v Turning Point Scotland has set out an interesting new consideration for employers concerning the treatment of long-COVID as a disability.
The case found that long-COVID (at least in this instance) met all the requirements of the Equality Act 2010 to be defined as a disability. This is a recent case following a quickly changing area of law and it follows that it may be the first of many. Equally, this judicial interpretation will give more guidance to employers on what to do if a member of staff has long-COVID and how they can support this in a structured way.
Long-COVID as defined by National Institute for Health and Care Excellence, is symptoms such as breathlessness, fatigue, joint pain and coughing that last for over 12-weeks. These symptoms are attributed to COVID in general, but the length of time is the marked difference. There is little tangible guidance on this set of symptoms as it is a comparatively new illness and the treatment for the ongoing symptoms has not yet developed into a codified area of medicine.
As of April 2022, the ONS estimate that there are 1.8 million individuals (some 2.8 per cent of the population) who were experiencing long-COVID symptoms (or self-reporting these) and many of these are unable to come into work. What this new case law means is that these people who were suffering from long-COVID and had prolonged absence now stand to have more protection from disability legislation.
To give a brief background of the case, the employee in question had been suffering from long-COVID from his positive test in November 2020 until his dismissal from the company in August 2021. He was absent from work this entire time, though having some periods where his health looked more positive, and he was able to consider returning but eventually suffering so drastically that he was unable to do so.
He had proof of his poor health through medical certificates from his GP and as a 20-year long employee of the company it was seen to be very unlikely he was exaggerating his ill-health.
To be considered disabled under the Equality Act 2010 there are key factors that need to be met. It is important to remember that these are not a medical test – they are a legal test to be decided upon by a judge. These are usually done with some guidance from medical experts but it is for an Employment Tribunal to decide if a Claimant is or is not disabled.
Under s.6 Equality Act 2010 – there must be physical or mental impairment, and this must adversely affect normal day-to-day activities. There must be substantial effect, (in this case meaning more than minor or trivial) and in this instance this was supported by the Claimant’s doctors. The effect that an impairment has can vary person to person and so it is a subjective assessment of that individuals impairment that is relevant.
However, even if there is a substantial impairment this must be long term to be classified as a disability. In this context, this means that it must have lasted for 12 months or be likely to last for 12 months (or have the potential to reoccur). For long-COVID this had been a sticking point as given that this is a new area of medicine there was not enough data to allow for a reasonable opinion that long-COVID would last for a long term.
In this case, the symptoms had lasted from November 2020 to at least August 2021 and so it was found that this was long term as it was likely to last longer than the 12 month period.
The definition of disability under the Equality Act 2010 is broad in an effort to afford protections to workers. The case of Burke v Turning Point Scotland will give both employers and employees more certainty about long-COVID should be considered in the workplace and the likelihood that these symptoms may (depending on the facts of each individual case) be considered to be a disability.
Pictured: Toby Pochron, employment director, Freeths