UK: Disability discrimination: Long-Covid
Mrs Quinn, who was employed as Head of People, tested positive for COVID-19 on or around 11 July 2021. She subsequently experienced fatigue, shortness of breath, pain and discomfort, headaches, and brain fog which affected her everyday life and disrupted her sleep. She struggled with shopping and driving and stopped socialising and exercising. On 26 July, she contacted her GP to arrange an appointment. On 27 July, she was dismissed from her employment. She consulted with her GP on 2, 8 and 22 August, during which time she was deemed unfit to work due to ongoing symptomatic COVID-19. On 12 September, she was deemed unfit to work due to post-COVID-19 syndrome and diagnosed with long-Covid.
Mrs Quinn brought a number of claims, including for disability discrimination. An employment tribunal had to decide whether she was disabled at the time of her dismissal. Mrs Quinn relied on the impairment of long-Covid including having COVID-19 for longer than normal. She argued that COVID-19 and long-Covid are part of the same condition and, given that other women her age with no underlying health conditions recovered more quickly than her after two weeks, it could have been predicted that she would experience long-Covid.
The tribunal found that Mrs Quinn wasn’t disabled because:
- At the time of her dismissal, she didn’t have long-Covid. Indeed, she wasn’t diagnosed with long-Covid until over six weeks later.
- While the impairment of COVID-19 had a substantial adverse effect on her ability to carry out normal day-to-day activities, this effect had lasted only two and a half weeks at the time of her dismissal and wasn’t long-term.
- Given that the substantial majority of people who catch COVID-19 don’t develop long-Covid, it couldn’t be said that the risk of developing long-Covid “could well happen”.
Key Action Points for Human Resources and In-house Counsel
This is a tribunal decision, so it will not be binding on other tribunals.
Earlier this year, another tribunal ruled that an employee with long-Covid symptoms was disabled under the Equality Act 2010 (see Top 5 recent workplace developments – July 2022). In that case, the employee had been absent from work with long-Covid for nine months at the time of his dismissal and the tribunal 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.