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Long Covid

Long Covid

Long Covid – The Discriminating Grey Area

A record two million people in the UK are now estimated to be suffering from Long Covid.  Of these 1.4 million have been suffering for at least 12 wekks and 376,000 suffering for two years, according to the Office of National Statistics (ONS).  Many find working difficult, with on-going sick days, or cannot work at all.  But is it – or may it become – a disability condition protected by discrimiation laws?

The lingering effects of Covid differ widely from sufferer to sufferer and can include intense fatigue, severe pain in all joints, “brain fog” where concentration is difficult or impossible, severe headaches when lying down is the only recourse, the inability to undertake normal jobs, including housework, for more than a very limited time, if at all.

Many in the medical profession are terming the condition “post viral fatigue syndrome”.

The condition is, as yet, a grey area but a recent Employment Tribunal ruling may possibly point the direction in which legislation may go.

In the last few weeks the Scottish Employment Tribunal ruled that an individual suffering from Long Covid was “disabled” for the purposes of the Equality Act 2010 and could therefore bring a disability discrimination claim against his former employer.

There are certain conditions (such as cancer or HIV) which are automatically classified as a “disability” under the Act. Long Covid is not such a condition, so whether it amounts to a disability is based on whether it meets the legal definition of disability.

Although a first-instance decision, which is not binding on other tribunals, it will be interesting to see whether this ruling will result in a spike in tribunal claims brought by those who feel they have been treated unfairly as a result of having Long Covid.

The claimant, Mr Burke, was employed as a caretaker/security by Turning Point Scotland, a charity supporting those in need (including those with disabilities) for about 20 years.

Mr. Burke first contracted Covid in November 2020 and never returned to work. His initial Covid symptoms were very mild and flu-like, however, after the isolation period, he developed severe headaches and symptoms of fatigue.  His symptoms included:

  • The need to lie down and rest from fatigue and exhaustion after waking, showering and dressing
  • Inability to perform household chores he was accustomed to helping out with, such as ironing, shopping and cooking meals
  • Inability to walk to his local shop to buy the newspaper (as he used to do)
  • Having joint pain in his arms, legs and shoulders, together with a loss of appetite and inability to concentrate
  • Having a disturbed sleep pattern

His employer obtained two occupational health reports in April 2021 and the other in June 2021. Both reports concluded that it was “unlikely” that the disability provisions of the Equality Act 2010 would apply to Mr. Burke.

A person is deemed disabled under the Act if they suffer from a physical or mental impairment which has a substantial (i.e. more than minor or trivial) and long-term effect (has lasted or is likely to last at least 12 months) on their ability to carry out normal day-to-day activities.

A number of claims were brought by Mr. Burke against Turning Point, including for disability discrimination. His employer argued to have the disability discrimination claim struck out on the basis that his condition did not constitute a “disability” under the Act. A preliminary hearing was held to determine this point.

In its judgement, the tribunal referred to the TUC’s report, ”Workers’ Experience of Long Covid” and noted its finding that fatigue is the most common symptom of Long Covid. Issues concerning concentration, joint pain, muscle pain and headaches were also mentioned.

The report had also found that roughly 29% of respondents experienced symptoms for 12 months or more and that symptoms varied over time (becoming worse on some days than others).

Applying the principles to Mr. Burke, the tribunal found that:

he had a physical impairment (Long Covid/post-viral fatigue syndrome) and his fluctuating symptoms were consistent with the TUC report.

Mr. Burke was not exaggerating his symptoms, as Turning Point had suggested. There was no incentive for him to remain off work when he had exhausted sick pay and the fact that he had been employed for 20 years did not suggest that he was likely to be pretending to be unfit for work.

The fact that there was a lack of specific details of the symptoms in some of the GP notes, due to the severe restrictions on face-to-face meetings with GPs at the time, did not mean that those symptoms did not exist. The essential diagnosis was “post viral fatigue syndrome” caused by Covid-19.

The tribunal rules that Mr. Burke’s physical impairment had an adverse effect on his ability to carry out normal day-to-day activities. That this effect was more than minor or trivial and long term because it “could well” be that it would last for a period of 12 months, when viewed from the dismissal date, which was the last alleged discriminatory act.

We  now await further tribunal decisions regarding the possible inclusion of Long Covid as a disability condition protected by discrimination laws.

The Graham Agency, keeping you informed.