Long Covid: Further Clarification for Employers
Many employers will already be aware of the risks concerned and the need for caution where an employee is off sick with Covid. This is particularly the case with long-Covid. In the employment law sector, there has been significant discussion over the previous two years about the extent to which long Covid may be considered to be a disability within the meaning of the Equality Act 2010.
By way of a brief reminder, for someone to be disabled under the Equality Act, they need to have a physical or mental impairment, that has a substantial and long-term adverse impact on their ability to carry out normal day-to-day activities. Where someone has long Covid that has the potential to last for at least a year, this creates a significant risk that the individual could fall within this definition. In recent months this has been considered twice by the Employment Tribunal.
In May 2022, the Employment Tribunal considered the matter in the case of Burke v Turning Point Scotland. Those of you who sign up to our employment law updates will have read our summary of this case, but for those who do not, here is a brief summary:
The employee in this case initially tested positive for Covid, but began to develop severe headaches and fatigue requiring him to lie down after activities as simple as showering and dressing, as well as suffering from loss of appetite and difficulties sleeping. These symptoms began in November 2020, and whilst he improved, by January 2022, he continued to suffer with these symptoms. His employer dismissed him in August 2021. He brought a claim for disability discrimination, and so the Tribunal had to decide whether he had a disability.
The Tribunal found that the fatigue caused by the long Covid was a physical impairment, which adversely affected his ability to carry out normal activities, and it was likely that when considered in August 2021 the condition would last for at least 12 months. Whilst his symptoms fluctuated, this was sufficient for him to be considered as disabled within the meaning of the Equality Act.
Employers need to take caution from this judgment, particularly the fact that the employer arranged two occupational health reports prior to dismissing, which both said that he was unlikely to be disabled and was fit to return to work, however, his fluctuating symptoms prevented this. We would always recommend an occupational health report be obtained in situations such as this. But a cautionary word that employers need to take care to not just rely solely on the findings of the report and to consider the matter more widely, taking legal advice where in doubt.
The question of long COVID as a disability has been considered again more recently in Quinn v Sense Scotland. In this case the employee tested positive for Covid on 11 July 2021, and subsequently suffered from fatigue, shortness of breath, pain and discomfort, headaches and brain fog, which had a significant impact on her daily life with activities such as driving and exercising, as well as interrupting her sleep.
Mrs Quinn was dismissed from her employment on 27 July 2021, and in September was subsequently diagnosed with long Covid. Again, she claimed for disability discrimination, so the Tribunal needed to decide whether at the time of her dismissal she was disabled. In this case, the Tribunal found that she was not. She was not diagnosed with long Covid until 6 weeks after her dismissal, and at the time of dismissal the symptoms causing the substantial effect on her day-to-day life had only lasted for 2 weeks. Bearing this in mind, and the fact that most people who catch Covid do not develop long Covid, it could not be said that it was likely that the symptoms would last for 12 months.
This decision goes more in favour for employers, but still needs to be viewed with caution. The case was distinguished from the Burke case (above) on the basis that the employee had only recently developed symptoms so it was not likely at the time of dismissal that there would be a long-term effect. It would however be a brave employer who dismissed an employee in such circumstances.
The above cases show that there is a need to consider each matter on a case-by-case basis. Employers should always proceed with caution where they suspect that long Covid may be a possibility. Despite Burke, an occupational health report remains essential to enable employers have a better understanding of the symptoms an employee may be experiencing, and whether it is more likely than not that the provisions of the Equality Act will apply.
If you require any advice about an employee who may have long Covid or managing the relationship with an employee who is absence due to sickness, please get in contact with our specialist employment law team who would be happy to assist.