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Burke v Turning Point Scotland

An employee with long COVID symptoms was ‘disabled’ for the purposes of the Equality Act 2010.

A person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to day-activities (s. 6 of the Equality Act 2010). The effect is long-term if it has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected.

Background

Mr Burke worked as a caretaker/security for a charity for around 20 years. He contracted COVID-19 in November 2020. Although his initial symptoms were relatively mild and he was not hospitalised, he later suffered from symptoms of extreme fatigue, sleep disruption, loss of appetite, joint pain, anxiety, and headaches. Those continuing symptoms lasted many months after his initial COVID-19 infection had ended.

Mr Burke's fit notes referred to long COVID and post-viral fatigue syndrome. He was also referred to OH (twice) and both times it said he was fit to return to work and that it was unlikely he was ‘disabled’ within the meaning of the Act. However due to the reoccurrence of his symptoms Mr Burke did not return to work. He was dismissed in August 2021 on the grounds of ill-health because of his continuing absence from work. Mr Burke brought various claims, including ones of disability discrimination. As a preliminary issue, the tribunal had to decide whether he was ‘disabled’.

Tribunal decision

It held that he was.

The tribunal looked at each part of the Act’s definition of ‘disabled’. Although the impact of his condition had varied over time, overall there was a substantial and long-term adverse effect on his ability to undertake day to day activities.

The employer argued that Mr Burke had exaggerated his symptoms. The tribunal dismissed this, finding Mr Burke a credible witness. The employer also pointed to the scant medical details provided by his GP on the fit notes. The tribunal wasn’t persuaded that this was an issue. At the relevant time, there were severe restrictions on being able to secure a face-to-face appointment with a GP. Although the GP’s notes of the telephone appointments did not fully particularise all the symptoms which Mr Burke described, nor did they discount them either. Moreover, the employer’s attempt to suggest Mr Burke was over-exaggerating did not chime with its own dismissal letter which noted that he was ‘still experiencing symptoms of extreme fatigue’ and said, ‘it is my view that you remain too ill to return to work’.

The judge accepted that those suffering from long COVID will have good days and bad days, which explained Mr Burke feeling able to return to work and then later feeling unable to do so after his symptoms returned. His sick pay had ceased, so there was no financial benefit to him remaining off work and his 20 years’ unblemished service did not suggest he was likely to over-exaggerate illness.

On the question of whether the substantial adverse effect was long term, the tribunal found that it was as it ‘could well be’ that it would last for a period of 12 months when viewed from the last of the alleged discriminatory acts - the dismissal date.

The tribunal will now go on to consider Mr Burke’s claims that his dismissal was unfair and that he has been discriminated against on the grounds of his disability and his age, and that he has not been paid a redundancy payment.

Comment

This is a tribunal decision and so does not bind any other tribunal.

Far from being a ‘landmark’ case (as trumpeted in some media), this decision is fact-specific and results from a simple application of the statutory test. It’s not really that surprising that some people who suffer from long COVID will meet this test – the facts and medical evidence will be key.

This isn’t the first tribunal to find that long COVID can qualify as a disability – and it probably won’t be the last. With the ONS estimating that around 2m people in the UK may be experiencing long COVID, employers should consider the possibility that employees suffering symptoms of long COVID may be disabled and look to see what reasonable adjustments could be put in place.