A Scottish employment tribunal has, for the first time in the UK, acknowledged that an employee’s long Covid amounts to a disability under the Equality Act. While the judgement only applies to the specific case, businesses should prepare for more to follow.
A caretaker working at a charity caught Covid (opens a new window) in November 2020 and while he described his symptoms as “flu like” over his isolation period he developed severe headaches and fatigue afterwards. This has meant that he had to lie down after waking, showering, and dressing, and that he couldn’t stand for long periods. He also reported joint pain in his arms, legs and shoulders, problems concentrating and sleeping.
The caretaker had several consultations with his general practitioner (GP), where he was diagnosed with post-viral fatigue syndrome and received several extended sick notes. He did not work for nine months after testing positive for Covid. During that time, he did have a telephone consultation with occupational health (OH). The OH report concluded that the caretaker was “medically fit to return to work”, advising a phased approach. It also concluded that it was “unlikely” that the disability provision in the Equality Act would apply in this case.
There was a follow-up consultation, and the caretaker was dismissed in August 2021 on grounds of ill-health after having worked at the charity since April 2001.
The charity caretaker has claimed he was unfairly dismissed and discriminated against based on disability and age – with his disability being long Covid – adding that his employer failed to provide a redundancy payment. While the judgment did not decide over the question if the dismissal was unfair, in a preliminary hearing the Tribunal ruled that the caretaker’s long Covid did amount to a disability under the Equality Act (opens a new window). The judge concluded that the caretaker’s condition had a “long-term substantial adverse effect”, meaning it was likely to last for a period of 12 months and that his impairment did have “an adverse effect on day-to-day activities”.
Under the Equality Act 2010 a disability is defined as a
“Physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day to day activities”.
“Long-term” for these purposes means the impairment has lasted 12 months or is likely to last at least 12 months or for the rest of the person’s life.
Consequences of the judgement
Experts believe that the Scottish employment tribunal judgement could be followed by many others, not least because it may be perceived as an encouragement to other employees in similar circumstances. Furthermore, the wide spectrum (opens a new window) of possible long Covid symptoms offers plenty of opportunities for potential disability discrimination claims.
Employment tribunals can award employees significant compensation in disability discrimination cases and businesses may be charged with discrimination claims arising because of disability, indirect disability, and failure to make reasonable adjustments.
If an employee can successfully claim that they have been dismissed on grounds of a disability, the employer has to re-employ them and pay compensation. The business may also need to offer a redundancy settlement. The employment tribunal ruling is generally likely to make it more complicated for companies to deal with absenteeism of employees claiming to have long Covid.
Although the Tribunal’s decision is not binding on other courts and not all cases of long Covid would amount to a disability, employers should assume that long Covid qualifies as a disability, despite not being deemed permanent.
Symptoms can come and go, which makes long Covid cases in the workplace even more difficult to address. If an employer feels that the employee is unable to do their work or is too often absent, they should see what they can do to support the individual. An additional OH assessment may help finding further support measures.
Before considering a capability procedure, businesses should make sure that they have explored all other options, including:
Seeking advice from OH specialists and possibly other clinicians.
Providing support to the employee through signposts to wellbeing resources, counselling, and employee assistance programmes.
Providing training to managers on how best to handle sensitive conversations surrounding health and how to manage an employee suffering from long COvid and policy updates
Reviewing relevant policies such as equal opportunities, reasonable adjustment, disability or sickness absence policies
If an employer dismisses an employee without first carrying out a full and fair disciplinary or capability procedure, the employee could make a claim of unfair dismissal to an employment tribunal.
The insurance aspect
This case highlights a benefit of Group Income Protection as insurers will look at each case and their merits, not to define the illness, but to consider whether it is preventing the individual from working. Notifying the insurer early can be seen to be actively supporting the employee. If the insurer declines a claim, employers should still take care to manage the employee appropriately and not discriminate. However, since the insurer will have had access to the medical evidence this should support the employer if they decide to proceed with dismissal.
For further information, please contact:
Oliver Wheatley, Senior Consultant Employee Benefits