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Long covid found to be a disability by employment tribunal

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Female banker in unequal pay dispute with her employer

A recent study by the Department of Health and Social Care reports that over two million people in England may have had long covid.

For any of those people whose employment was affected, a recent ruling within the Scottish employment tribunal will be of interest.

In the case of Burke v Turning Point Scotland, Mr Burke tested positive for covid-19 on 15 November 2020. His symptoms developed from mild to severe headaches and fatigue following the isolation period, with an inability to concentrate and a disturbed sleep pattern leading to him suffering difficulties in completing his usual day-to-day tasks such as showering/dressing/walking/socialising.

Two occupational health reports provided the opinion that Mr Burke’s symptoms were unlikely to amount to a disability under the Equality Act 2010.

Mr Burke felt better on some days than others, the symptoms were unpredictable, and this led to him feeling anxious. He was unable to return to work before his dismissal on the grounds of ill health on 13 August 2021.

The Equality Act provides that if a person has a physical or mental impairment which has a substantial (more than minor or trivial) effect on a person’s ability to carry out normal day to day activities and has lasted/is likely to last 12 months or likely to be a lifelong condition the impairment may be classified as a disability.

The employment tribunal applied these principles to Mr Burke’s case and found that his condition of post viral fatigue syndrome/long covid did meet the criteria to be legally defined as a disability.

The Equality and Human Rights Commission (ECHR) have previously said that long covid is not a named disability under the Equality Act. Therefore, it is not a condition that is automatically deemed to meet the legal definition of a disability, and each case will need to be merited on its own facts dependant on the severity of the effects on a person’s day to day life.

The decision in this recent case is not binding on the employment tribunals within England and Wales, however, it may give rise to a new wave of potential claims from sufferers of long covid who could seek to rely on this decision within their own case.

By Joanne Ribchester, paralegal