Is long-COVID a disability? Yes, holds a Scottish Employment Tribunal





A Scottish Employment Tribunal has held that an employee suffering from symptoms of long-COVID was disabled for the purposes of the Equality Act 2010. The employee suffered from the physical impairment of ‘long-COVID’ or ‘post viral fatigue syndrome’ arising from him contracting COVID-19 in November 2020 and, although the impact varied over time (with the employee having good days and bad days) overall there was a substantial and long-term adverse effect on his ability to undertake day-to-day activities.

Legal background

A person is defined as having a disability if they have 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 (s 6(1) Equality Act 2010). ‘Substantial’ means more than minor or trivial. An impairment has a ‘long-term’ effect if, at the date of the alleged discriminatory act, it has lasted (or is likely to last) at least 12 months, for the rest of the worker’s life or if it is likely to recur if it is in remission.

Factual background

B worked as a caretaker/security for a charity for around 20 years. He contracted COVID-19 in November 2020. Although B’s initial symptoms were relatively mild and he was not hospitalised, he later suffered from symptoms of extreme fatigue, sleep disruption, loss of appetite, joint pain, anxiety, and headaches. Those continuing symptoms lasted many months after his initial COVID-19 infection had ended.

B provided his employer with various fit notes from his GP over the period of his absence, which gave varying reasons for absence including ‘fatigue’, ‘post-viral syndrome’ and the ‘after-effects of long- COVID’. In April 2021, an occupational health report said his symptoms had improved, that he was able to return to work and that it was unlikely he was disabled. However, B did not return to work because he continued to suffer from periods of daytime sleepiness. A further occupational health report in June 2021 considered B’s symptoms of daytime fatigue, but again said it was unlikely that B was disabled. Fit notes were issued by B’s GP in June and July 2021, giving the diagnosis ‘post viral fatigue syndrome’.

In August 2021, B was dismissed by his employer on the grounds of ill-health as a result of his continuing absence from work. The dismissal letter confirmed that ‘having reviewed the capability report including occupational health opinion closely, and taken the details of our discussion into consideration, it is my view that you remain too ill to return to work. It is my view that you remain too ill to return to work and there appears to be nothing further we can do to adjust your duties or work environment that would make your return more likely. In addition, there does not appear to be a potential date on which there is a likelihood of you being able to return to full duties in the future.’ B brought various claims before the employment tribunal.

Was the employee ‘disabled’?

At a preliminary hearing, the Employment Tribunal judge held that, during the relevant timeframe, B was ‘disabled’ for the purposes of the Equality Act 2010. B suffered from the physical impairment of ‘long-COVID’ or ‘post viral fatigue syndrome’ arising from him contracting COVID-19 in November 2020 and, although the impact this had varied over time (with B having good days and bad days) overall there was a substantial and long-term adverse effect on B’s ability to undertake day to day activities.

The employer suggested that B was over-exaggerating his symptoms, pointing to the scant medical notes taken by his GPs when issuing fit notes and argued that the real reason he did not return to work was a restructure taking place in his team. However, the judge quickly dismissed those arguments. The judge was satisfied that B and his daughter had given evidence of B’s ongoing symptoms in a ‘straightforward and credible manner’ and took note of the fact that, at the relevant time, there were severe restrictions on being able to secure a face-to-face appointment with a GP. Although the GP’s notes of the telephone appointments did not fully particularise all of the symptoms B described, nor did they discount them either. Further, the reasons given for absence on the fit notes issued by the GP were in keeping with B suffering from long-COVID or post-viral fatigue syndrome.

The judge also accepted that those suffering from long-COVID will have good days and bad days, which explained B feeling able to return to work and then later feeling unable to do so after his symptoms returned. B’s sick pay had ceased, so there was no financial benefit to B in remaining off work and his 20 year’s unblemished service did not suggest he was likely to over-exaggerate illness.

Further, the employer’s attempt to suggest B was over-exaggerating did not accord with its own dismissal letter which noted that B was ‘still experiencing symptoms of extreme fatigue’ and said, ‘it is my view that you remain too ill to return to work’.

B’s impairment had an adverse effect on his day-to-day activities, and although the seriousness of the effects on B varied (he had good days and bad days) overall the adverse effect was substantial. B could not walk to the nearby shop to collect his paper, needed help with cooking, ironing and shopping. B had difficulty in concentrating or reading for any length of time and his sleep was disturbed.

The adverse effects of B’s condition were likely to be long-term, on the basis that it could well happen that they would subsist until November 2021 (ie for 12 months or more).

The ET will now proceed to consider B’s substantive disability discrimination and unfair dismissal claims.

What does this decision mean in practice?

This non-binding Employment Tribunal Decision does not mean that every long-COVID sufferer will be disabled; each case will turn on its own facts.

However, it does seem likely that many people with long-COVID will satisfy the definition of disability. Recent ONS estimates suggest that around 3.1% (around 2 million people) of the UK population have symptoms of long-COVID. The symptoms of long-COVID are also long-lasting: 1.4 million people (72%) reported that they first had COVID symptoms at least 12 weeks previously, 826,000 (42%) at least one year previously, 442,000 (22%) less than 12 weeks previously, and 376,000 (19%) at least two years previously. Further, 1.4 million people said that their long-COVID symptoms adversely affected their day-to-day activities with 398,000 people saying that their ability to go about their day-to-day activities had been ‘limited a lot’. The most common long-COVID symptoms were fatigue (55%), followed by shortness of breath (32%), a cough (23%), and muscle ache (23%). The prevalence of self-reported long-COVID was greatest in people aged 35 to 69 years, females, people living in more deprived areas, those working in social care, teaching and education or health care, and those with another activity-limiting health condition or disability.

Burke -v- Turning Point Scotland [2022] ET 4112457/2021