When is ‘long COVID’ a disability?

As we continue to emerge from the effects of COVID-19 Birketts’ Liz Stevens addresses the issues of long COVID and disability discrimination facing employers.

Earlier this year, a tweet from The Equality and Human Rights Commission (EHRC) caused some confusion by stating that “EHRC does not recommend that ‘long COVID’ be treated as a disability”. This was subsequently clarified by the EHRC, which published a statement saying that if a person’s symptoms have a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, long COVID might amount to a disability under the Equality Act 2010.

Burke v Turning Point Scotland

In June 2022, an employment tribunal held in the case of Burke v Turning Point Scotland ETS/4112457/2021 ruledthat the claimant, who had been suffering from long COVID and had been on long-term sickness absence for a period of nine months before his dismissal, was disabled under the Equality Act 2010. The symptoms he was suffering from were varied and unpredictable, and relapses in his symptoms, particularly fatigue, meant that he was unable to return to work. The tribunal was satisfied that the claimant had not exaggerated his symptoms; he had a physical impairment (post-viral syndrome) that had an adverse effect on his ability to carry out day-to-day activities.

More recently, an employment tribunal has considered whether an employee who was dismissed just two and a half weeks after testing positive for COVID-19 was disabled for the purposes of a claim for disability discrimination.

Quinn v Sense Scotland

In Quinn v Sense Scotland ETS/4111971/2021, the claimant developed symptoms and tested positive for COVID-19 on or around 11 July 2021. Her symptoms, which included fatigue, shortness of breath, pain and discomfort, headaches and brain fog, affected her everyday life and disrupted her sleep. She was dismissed from her employment on 27 July. Following a number of appointments with her GP, on 12 September 2021 she was deemed unfit to work and diagnosed with long COVID.

The claimant brought a number of claims in the employment tribunal, including for direct disability discrimination. An employment tribunal held that she was not disabled within the meaning of the Equality Act 2010. At the time of her dismissal, she had not been diagnosed with long COVID. Whilst COVID-19 did have a substantial adverse effect on her ability to carry out day-to-day activities, and by the time of the hearing it had lasted over a year, at the relevant time it was not ‘long term’. Further, as a substantial majority of people do not develop long COVID, it could not be said that at the time of her dismissal  it “could well happen”, meaning it did not meet the requirement under the statutory definition for it being likely to last 12 months or more.

The Birketts view

We will  soon see cases being heard by the Employment Appeal Tribunal dealing with the issue of long COVID and disability discrimination, but at present we only have first instance (and therefor non-binding) decisions of the employment tribunals.

The question of whether an individual with long COVID is disabled will be assessed, according to established principles for determining whether the statutory definition of disability has been met, at the time of the events in question. It is highly likely that individuals who continue to suffer symptoms more than 12 months after their infection will be able to establish that they have a disability, meaning that employers will be under a duty to make reasonable adjustments.

Acas has published guidance on dealing with long COVID for employers and employees, including whether long COVID is treated as a disability, and how employers should support employees to return to work. The guidance suggests that “employers should focus on the reasonable adjustments they can make rather than trying to work out if an employee’s condition is a disability”.