Recognising long COVID as a disability - Burke v Turning Point Scotland

At the end of our recent blog on whether ‘long COVID’ could constitute a disability under the Equality Act 2010 (the Act), we noted that its recognition would be unlikely until there was further scientific or case law developments. As it turns out, we didn’t have to wait too long for the employment tribunal to find that in the specific circumstances, a claimant’s long COVID did constitute a disability under the Act.

A preliminary hearing to determine disability status was held in the case of Burke v Turning Point Scotland to determine whether the claimant was disabled under the Act.

Mr Burke was employed by Turning Point Scotland from 2001 until 2021 when he was dismissed for his continuing absence from work. He contracted COVID in November 2020 with mild ‘flu like’ symptoms initially, but found the after-effects of the virus severe. His continuing symptoms included fatigue, joint pain, loss of appetite, loss of concentration, and insomnia. He did not feel well enough to complete his usual household tasks such as cooking and cleaning and withdrew from socialising with friends and family. He found that his symptoms would fluctuate in severity from day to day, but this in itself made him anxious. He was not able to return to work on any meaningful basis, and provided fit notes from his GP to cover his absence from November 2020 to August 2021.

Turning Point Scotland questioned the severity and impact of these symptoms, and after two occupational health reports, dismissed Mr Burke stating there was nothing further they could do to adjust his duties.

To hold that he was disabled under the provisions of the Act, the tribunal had to find that Mr Burke had a physical or mental impairment which had a substantial and long term adverse effect on his ability to carry out normal day-to-day activities.

They found that he was suffering from the physical impairment of ‘long-COVID’ or ‘post viral fatigue syndrome’. Although his symptoms fluctuated between good days and bad days, this was consistent with available evidence of the effects of long-COVID. They accepted that his symptoms had a substantial adverse effect on his ability to undertake day-to-day activities, and that they were long term (capable of lasting 12 months or more). Accordingly, the employment tribunal found Mr Burke was disabled, becoming the first case of its kind to do so.

We believe this to be the first reported case of its kind to formally recognise long COVID as a disability, it is unlikely to be the last. Mr Burke is not alone in his suffering. Recent figures from the Office of National Statistics estimate that 2 million people in the UK are experiencing long COVID symptoms, 71% of whom report that their symptoms adversely affect their normal day-to-day activities.

Each case will turn on its own circumstances, but this case serves to highlight to employers that employees who are suffering from long-COVID could be considered ‘disabled’ under the provisions of the Act. Employers should continue to consider their employees on an individual basis and whether any reasonable adjustments may be necessary for them.

If you would like to discuss any disability related adjustment that an employee is seeking, or otherwise how to handle disability or medical conditions in the workplace, please contact one of our employment team.