01 July, 2022
A significant development for employers, including those in the education sector, took place last week when the employment tribunal handed down its judgment in the case of Burke v Turning Point Scotland. For the first time in a reported case, the tribunal held that an individual with long Covid met the statutory definition of 'disabled person' under the Equality Act 2010, thus affording them additional protections in the workplace and allowing them to pursue a claim of disability discrimination based upon their employer's actions.
Until now there has been a lack of guidance from the courts and other bodies as to the extent to which employees who suffer from long Covid may or may not have specific protections and rights from an equality perspective, and this decision may well influence how employees with the condition are treated when it comes to not only sickness absence procedures and pay, but also performance management and consideration of reasonable adjustments. It should be borne in mind however, that the case was very fact specific, and employers may still take the view that not all employees who have long Covid will be disabled, where the medical evidence and personal circumstances of the employee support that position, taking expert advice from HR and/or legal along the way.
Despite this, the decision will no doubt be welcomed by many people suffering from long Covid, who only recently had cause for concern when the government's equalities watchdog stated that the condition should not be treated as a disability.
In a tweet posted in May 2022 the Equalities and Human Rights Commission (EHRC), said: "Discussions continue on whether 'long Covid' symptoms constitute a disability. Without case law or scientific consensus, EHRC does not recommend that 'long Covid' be treated as a disability."
The statement had prompted immediate concern and confusion from long Covid support groups and trade unions. The case of Burke moves us on, and this new tribunal decision will carry significant weight, despite it only being a first instance decision (meaning that technically other employment tribunals do not have to follow it). We take a look at some of the key issues which arise from the judgment below.
Mr Burke contracted Covid-19 in November 2020, initially suffering fairly mild symptoms. However, he later experienced joint pain, extreme fatigue, sleep disruption, loss of appetite, anxiety and headaches. His employer was provided with fit notes which cited a number of different reasons for his absence including fatigue, post-viral syndrome and after-effects of long Covid. The claimant was seen by occupational health in April 2021 and June 2021 (whilst his absences were ongoing), and in both cases the reports which followed confirmed that he was unlikely to be disabled. The employer dismissed Mr Burke in August 2021, after 20 years' continuous service, on the grounds that he remained too ill to return to work. It also noted that there were no further adjustments that could be made and that there was no potential date that could be identified for a full return to work.
At a preliminary hearing the employment judge found that although the impact on Mr Burke's day-to-day activities had varied over time (with him having good days and bad days) overall there was a substantial and long-term adverse effect on his ability to undertake normal day to day activities, meeting the definition of a disabled person under the Equality Act 2010.
Mr Burke's symptoms may not be shared by all long Covid sufferers, and employers need to be aware that different after-effects of the virus could still amount to a disability, where they have a material impact of the individual's ability to carry out day to day activities. The National Institute for Health and Care Excellence (NICE) defines long Covid or post-Covid syndrome as: 'signs and symptoms which develop during or following an infection consistent with COVID-19 […] which continues for more than 12 weeks and is not explained by an alternative diagnosis.' Symptoms are wide ranging and fluctuating and can include 'breathlessness, chronic fatigue, brain fog, anxiety and stress, generalised pain and persisting high temperature.' The NHS website states that the long-term effects of the illness can be debilitating, even for young and fit people, or those who did not initially attend hospital when they had Covid symptoms.
The short answer is no, not every employee who has long Covid will automatically be a disabled person. However, employers should take note that they could be disabled. As mentioned above, under s.6 of the Equality Act 2010, disability is a physical or mental impairment which has a 'substantial and long-term' negative effect on a person's ability to do normal day-today activities. 'Long term' means that the impairment has lasted or will last for at least 12 months, or can come and go or is likely to last for the rest of the person's life. Each case will need to be determined on its own facts and merits.
It has been reported by the Trade Union Congress (TUC) that almost three in ten of their respondents in a survey surrounding 'workers' experiences of long Covid', reported that they had been experiencing long Covid symptoms for 12 months or more, suggesting that this element of the disability test is likely to be met by many sufferers.
Very few medical conditions automatically qualify as a disability, and it still seems unlikely, at this stage at least, that long Covid will be added to that short list. Employers should continue to assess each case on an individual basis and to engage with occupational health as well as any additional medical evidence that the employee can provide. Prior to this decision, ACAS had stated that employers should consider putting in place reasonable adjustments for those suffering with long Covid, to ensure that these employees are not put at a disadvantage in comparison to their work colleagues, and this remains good practice.
As well as potential disability discrimination, long Covid has also been found to severely affect older people, ethnic minorities and women. The Office for National Statistics has reported that as of 6 January 2022 approximately 1.3 million people living in the UK (1.9% of the population) were experiencing self-reported long Covid. The rates of self-reported long Covid were greatest in people aged 35-69, females, those living in the most deprived areas, those working in health or social care and those with a pre-existing health conditions. Employers must also therefore avoid discriminating on the grounds of protected characteristics such as age, disability, race or sex when they take any action relating to employees with long Covid.
If a person with long Covid is a disabled person, then they have the right to bring a number of types of discrimination claims where they feel they have been treated unfavourably by their employer. This includes not only direct discrimination, where an employee argues that they have been treated less favourably than a comparable colleague on account of their disability, but also discrimination arising from disability, which allows an employee to argue that they have been treated unfavourably as a result of something which arises from their disability, which could include significant absences or the inability to carry out certain tasks. In such circumstances the employer would need to show that it had a proportionate means of achieving a legitimate aim for such treatment. In addition disabled employees are protected against indirect discrimination, harassment and victimisation.
If the employer feels that the employee is unable to do their work or is taking too much time off work due to long Covid, they should act supportively and see if they can do anything to help e.g. organising a further occupational health assessment to find out if more support is needed. The employer should ensure that they have done everything that they can to assist the employee prior to considering a capability procedure. If the employer dismisses the employee without firstly carrying out a full and fair capability procedure, then the employee may also be able to make a claim for unfair dismissal at the employment tribunal. In the case of Mr Burke, now it has been determined at a preliminary hearing that he has a disability, his case will now go to another tribunal to determine whether he suffered any discriminatory treatment, and whether his dismissal was fair or not.
Mr Burke was employed as a caretaker and we therefore assume that his role encompassed physical activities which his condition prevented him from undertaking. Schools and colleges should consider the daily tasks which an employee is normally required to undertake and where that employee is suffering from long Covid, they should explore with the employee whether there are any changes to the role which could be made to facilitate a return to work, or less of an impact on the employee where they have come back to work but are finding that they are still affected by the condition. Further, they should ensure that capability and absence procedures are followed, and that trigger points and sanctions are given careful consideration before application in case it would be reasonable, based on a person's symptoms, to amend those as a reasonable adjustment. Those schools in a multi academy trust should always consider redeployment or change of role, where possible, across the trust, prior to taking any decisions to terminate the contracts of employees with long Covid. Communication with employees is also key, ensuring that those who may be absent or underperforming as a result of long Covid feel supported and listened to.
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