The recent employment tribunal case of Burke v Turning Point Scotland has confirmed that long Covid may be a disability which is protected under the Equality Act. What does this mean for employers?
Although this is a first instance decision, which means that it may not be followed by future tribunals or the Employment Appeal Tribunal, it offers employers a reminder of the relevant factors to consider when managing the unpredictable impact of long Covid.
The facts of Burke v Turning Point Scotland
Mr Burke was employed by Turning Point as a caretaker for nearly 20 years. After contracting Covid in November 2020 and suffering with initially mild symptoms, he began to experience severe headaches and fatigue. The impact of his symptoms meant that he:
- had to lie down to recover after waking, showering and dressing
- struggled to stand for long periods
- couldn’t walk to his local shop to buy a paper
- felt unable to attend social or important events such as a funeral
- was unable to perform normal household activities such as cooking, ironing or shopping
- experienced additional difficulties such as joint pain, a loss of appetite, reduced ability to concentrate and difficulty sleeping.
Mr Burke’s symptoms were intermittent and unpredictable. They would occasionally improve, before becoming worse again. He remained off work from November 2020 onwards and, despite some improvement in his overall health by January 2022, he was left with the ongoing problems of fatigue and disrupted sleep patterns.
Unhelpfully for his employer, fit notes from Mr Burke’s GP were relatively vague and referred to the aftereffects of long Covid and post-viral fatigue, rather than any of the particular symptoms set out above. The fit notes were obtained after telephone consultations, due to the restrictions on in-person appointments in place during the pandemic.
In contrast, two Occupational Health reports were produced over the course of 2021 which advised that Mr Burke was medically fit to return to work. The first report included advice to introduce a phased approach to returning to work, with gradually increased shift times. The reports also stated that he was unlikely to be disabled for Equality Act purposes.
Turning Point eventually dismissed Mr Burke in August 2021 due to his ill health and ongoing absence. He brought several claims in the employment tribunal, including claims for disability discrimination.
The tribunal’s decision
Turning Point applied to have the disability discrimination claims struck out. A preliminary hearing was held to determine whether Mr Burke’s condition amounted to a disability under the definition in section six of the Equality Act, which defines a disability as “a physical or mental impairment” which “has a substantial and long-term adverse effect on [a person’s] ability to carry out normal day-to-day activities”. An impairment is long-term for the purposes of the Act if it has lasted or is likely to last for 12 months.
The tribunal highlighted the following points in concluding that Mr Burke was disabled and that his disability discrimination claim could proceed:
- The symptoms Mr Burke suffered from were not exaggerated (despite the lack of medical evidence to support his claims)
- The scant detail on the GP fit notes reflected the restricted nature of medical consultations at that time
- There had been a report by the TUC in June 2021 that detailed the fluctuating symptoms associated with long Covid and Mr Burke’s experience was consistent with this
- He had the post-viral fatigue syndrome caused by Covid
- His entitlement to sick pay had ended in June 2021, so there was no incentive for him to still be off work beyond this point. The tribunal did not accept the suggestion that Mr Burke was still off due to a potential redundancy situation that had arisen.
The tribunal found Mr Burke to have a physical impairment which had an adverse effect on his ability to carry out normal day-to-day activities. The tribunal held that it “could well” be that Mr Burke’s condition would last for a period of 12 months as at the date on which he was dismissed, which he was arguing was the last act of discrimination by his employer.
In any event, Turning Point had also concluded that there was no future date on which Mr Burke’s return to work seemed likely.
What does this case mean for employers managing long Covid?
The decision confirms the need for employers to adopt a cautious approach when it comes to managing employees with long Covid because of the potential for fluctuating symptoms over an extended period of time. Medical reports are of limited assistance where the nature of the condition involves “peaks and troughs” and an employee’s health may improve only temporarily.
While not every case of long Covid will be as debilitating or last as long as it did for Mr Burke, managers should be clear on:
- The best way to handle the intermittent sickness absence that is commonly associated with the symptoms of long Covid
- The danger of allowing frustration at an employee’s repeat absences from impacting the decision-making process
- When to seek external medical advice and/or input from occupational health advisers. Any medical reports still needs to be viewed holistically, particularly as the Burke decision demonstrates that an employment tribunal may reach the opposite conclusion as to whether the legal definition of a disability has been established
- The need to adjust internal processes to account for the effect of long Covid symptoms (such as brain fog) on employee performance
- Any wider adjustments that may assist employees to manage their symptoms e.g. a staggered return to work and/or longer rest breaks
- The application of any employer permanent health insurance policy and how intermittent absence affects entitlement to benefits.
In adopting such a strategy, employers will be able to support employees in their return to work and will also be ready to defend any future employment disputes, whether or not the employee’s symptoms trigger the disability definition under the Equality Act 2010.
Further information can be found in our March edition of HRLaw, where we analysed the legal issues which arise in relation to employees suffering from long Covid.
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