Tribunal defines Long Covid as a disability – what does this mean for employees and employers?

What is a disability?

The Equality Act 2010 defines someone as having a disability if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to carry out normal daily activities.

What is long Covid?

The NHS has advised that most people will make a full recovery from Covid-19 within 12 weeks of having it. However, for some people, the symptoms may last longer and result in developing a condition known as longCovid.

Common long Covid symptoms include fatigue, shortness of breath, joint pain, headaches, depression and anxiety, to name a few.

Tribunal ruling

Mr Terence Burke was signed off work as a charity caretaker in November 2020 further to contracting Covid. Although he only suffered mild symptoms, it did not take long until he was unable to carry out simple household tasks.

Nine months later, Mr Burke was yet to return to work due to the symptoms he was suffering. This resulted in his employer dismissing him on the grounds of his ill-health.

The tribunal heard that the level of fatigue Mr Burke was suffering could wipe him out. His sleep remained disturbed, but he struggled with concentration, and was also experiencing ongoing joint pain. This impacted Mr Burke’s ability to continue with daily activities, such as household chores, self-care and shopping.

It was therefore held that long Covid had a “substantial and long-term adverse effect” on his ability to carry out normal day to day activities. Mr Burke’s case has set a landmark precedent defining long Covid as a disability, under the Equality Act 2010.

Mr Burke was therefore given permission to bring a case of disability discrimination against his former employer.

If you have an employee suffering from long-covid, we urge you to contact our Employment Team to discuss possible reasonable adjustments that you should consider, and how to lawfully manage their absence and its impact on your business.

Snowball effect of this ruling

This ruling could now lead to a significant rise in claims, given that it is thought nearly two million people in the UK are suffering with long Covid.

Many employees may seek to rely upon the precedent now set in this case and bring claims against their own employers if they, too, have suffered similar circumstances.

Please contact us for advice if you are suffering from long-covid and feel that you have suffered from discrimination.