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UK: Disability Discrimination – Long-Covid

Authors: Ruth Bonino, Corinna Harris and Sophie Jackson

Mr Burke was employed as a caretaker for nearly 20 years when, in November 2020, he contracted COVID-19. Initially his symptoms were mild, but he went on to develop severe headaches and fatigue. He also experienced joint pain, a loss of appetite, a reduced ability to concentrate and difficulty sleeping. Mr Burke’s fit notes referred to the effects of long COVID and post-viral fatigue syndrome. However, two Occupational Health reports noted that he was fit to return to work and that he was unlikely to be disabled under the Equality Act.

Although his health began to improve, sleep disruption and fatigue continued to affect Mr Burke’s ability to do normal daily activities. He didn’t return to work and was dismissed in August 2021 because of ill health. He subsequently brought claims for disability discrimination

For this claim to succeed, Mr Burke had to show that his long Covid symptoms had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

As a preliminary issue, the tribunal had to assess whether Mr Burke was disabled. The tribunal found that his long-Covid symptoms amounted to a disability as they had a substantial adverse effect on his ability to carry out normal day-to-day activities. It also found that his condition was long term, noting that his employer’s view was that there was no date when a return to work seemed likely.

Key Action Points for Human Resources and In-house Counsel

This is a tribunal decision, so it will not be binding on other tribunals.

Long Covid may amount to a disability, but all will depend on the precise impact of Covid on the particular individual. Employers should, however, err on the side of caution when managing employees who are suffering from this condition – and consider what reasonable adjustments may be appropriate for those employees.

Burke v Turning Point Scotland