Employment Tribunal finds that employee with long COVID was disabled under the Equality Act

24 Jun 2022

In the recent case of Burke v Turning Point Scotland, an Employment Tribunal has found that an employee who was absent from work due to the effects of long COVID was “disabled” under the Equality Act 2010.

Why is this important?

Disabled employees are protected against discrimination due to their disability. The Equality Act sets out the legal test for determining whether an individual is “disabled”. They must be suffering from 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.

In this case, the Tribunal had to apply this test to an employee who had been dismissed due to absence caused by the effects of long COVID. The Tribunal accepted that long COVID is a recognised condition which some people suffer from after contracting COVID-19. On the facts of this case, the effect of long COVID was found to be sufficiently serious and long-term to amount to a disability.

While this decision isn’t binding on other tribunals, it does show that judges are willing to accept that long COVID is a physical impairment which can amount to a disability.

What should you do?

Long COVID continues to have an impact on some people’s long-term health. Employers will therefore need to be mindful of the fact that employees with long COVID may be disabled under the Equality Act.

If the effects of long COVID are impacting on an employee’s ability to carry out their role, employers should consider whether there are any reasonable adjustments that could be made. For example, changing hours of work or duties should be considered if this would enable an employee to return to work.

Employers should also exercise caution and take advice if considering dismissing an employee due to absence caused by long COVID.

Compensation for discrimination claims is uncapped and so this case demonstrates the importance of employers dealing with long COVID appropriately.

To find out more information click here. 

Author

Kira McKane

Solicitor