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Does "Long COVID" Count as a Disability?

By Chloe Lewis

Burke v Turning Point [2021]

Mr Burke was employed by Turning Point Scotland, a charity that helps people in need, including those with disabilities, for approximately 20 years. He contracted Covid in November 2020 and did not go back to work. Initially, his Covid symptoms were mild. However, after isolating, he had severe headaches, fatigue, and other issues. Mr Burke’s condition fluctuated, causing him to feel anxious.

Turning Point obtained reports from occupational health experts in April and June 2021. Both stated it was ‘unlikely’ that Mr Burke’s condition qualified as a disability under the Equality Act 2010[1]. As Mr Burke had used his sick pay allowance by June 2021, he was dismissed due to health reasons in August 2021. Mr Burke made several claims against Turning Point, including disability discrimination. Turning Point sought to have the discrimination claim dismissed, arguing that Mr Burke's condition did not meet the legal definition of a disability.

Section 6 of the Equality Act defines ‘disability’ as including a ‘physical or mental impairment’ and this impairment has a ‘substantial and long-term adverse effect on their ability to carry out normal day-to-day activities’. In Goodwin v Patent Office[2], the Employment Appeal Tribunal (EAT) indicated that when assessing cases involving impairment, the Employment Tribunal (ET) should adopt a purposive approach to the definition of disability; thus, making it possible for new forms of impairment to fall under the protections afforded by the Equality Act. The EAT summarised that the Act concerns impairments which impact upon the individual’s ability to carry out everyday tasks, Therefore, it focusses upon activities that the individual is unable to do or can only do with ‘substantial’ difficulty.

The word ‘substantial’ is, however, potentially ambiguous. Section 212(1) of the Equality Act 2010[3] states that 'substantial' means more than minor or trivial. On the other hand, Schedule 1[4] of the act states that the effect of an impairment is long-term if ‘it has lasted for at least 12 months, it is likely to last for at least 12 months, or it is likely to last for the rest of the life of the person affected’. However, when viewed in conjunction with the purposive approach advocated by the EAT in Goodwin, a clearer approach can be identified as can be seen in the Burke v Turning Point case.

The Tribunal assessed whether Mr Burke had a physical impairment. The Judge accepted the evidence that Mr Burke was “exhausted for days” after a family gathering, and that he could not attend face-to-face meetings with GPs. The Judge also recognised that Mr Burke’s sick pay had ceased in June 2021 and was also not on any financial benefits, which meant that the claimant obtained no financial support during the time of his illness.

The Tribunal then proceeded to evaluate whether the impairment had an adverse effect on the claimant's ability to carry out normal day-to-day activities. The Judge's conclusion hinged on the acceptance of the claimant's evidence, ultimately affirming that the impairment indeed had a detrimental impact on the claimant's daily life. This encompassed tasks as seemingly routine as walking to the nearby shop and assisting with household chores.

This brings us to the pivotal question of the ‘substantiality’ of these effects. While the severity of the impact may have fluctuated, during the relevant time, it was undeniable that the negative consequences were significant, far surpassing mere minor or trivial inconveniences. The claimant stated that fatigue greatly affected him causing him to feel exhausted. Mr Burke’s sleep was disrupted, and his joint pain flared up regularly. Mr Burke frequently needed rest or sleep due to aching legs and body, even following a short walk. All of this affected his concentration levels and his ability to work.

The Judge concluded that Mr Burke’s condition satisfied the definition of a ‘disability’. The judge also found that the claimant was a disabled person during the period 25 November 2020 to 13 August 2021 which included the relevant period of the alleged discriminatory acts.

This is a highly significant decision. It confirms that those individual’s suffering with long-term Covid could be classified as ‘disabled’ according to the Equality Act and thus entitled to protection from disability discrimination law. Of course, each case will need to be considered on its own facts and employers and judges need to analyse any relevant medical evidence to assess its impact on the individual. But there is no doubt that this decision serves as an important development concerning the protection of individuals with long Covid from employment discrimination.

[1] Equality Act 2010 [2] Goodwin v Patent Office [1999] ICR 302, [1999] IRLR 4 [3] Equality Act 2010, s212(1) [4] Equality Act 2012, Schedule 1 para. 2

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