The Equality Act 2010 protects employees and other individuals such as job applicants from disability discrimination in the workplace. There is a specific legal definition of “disability” under the Act, which can differ from the everyday meaning of the word.
In this week’s alert, we look at a decision of an employment tribunal in Scotland which has recently considered whether or not an employee suffering from long COVID was disabled. We also take a look at changes to the rules around fit notes effective from today.
Burke v Turning Point Scotland
Turning Point Scotland is a charity which employed Mr Burke in a caretaker/security role from 23 April 2001 to 13 August 2021. Mr Burke tested positive for COVID in November 2020. His symptoms were mild at first, and he described them as being “flu like” over the isolation period. Following his isolation however, he developed severe headaches and fatigue. He said that after waking, showering and dressing, he needed to lie down to rest from fatigue and exhaustion, and that he struggled standing for long periods. He could not carry out household activities such as cooking, ironing and shopping due to a lack of energy. He could not go shopping and relied on his daughter to arrange for shopping to be delivered to his home.
He also suffered from joint pain, loss of appetite, reduced concentration and disruption to his sleeping pattern. His fatigue and headaches affected his ability to socialise and prevented him from attending important events, such as a family funeral, which was out of character for him. His symptoms were unpredictable; he felt he would be improving and would then suffer from fatigue and exhaustion which made him anxious. It was not until around the beginning of January 2022 that he began to feel better. However, sleep disruption and fatigue continued to affect his day-to-day activities, particularly with domestic chores and concentration.
Mr Burke remained off work from November 2020 and submitted fit notes referring to the effects of long COVID and post-viral fatigue syndrome. He was referred to occupational health which confirmed that whilst Mr Burke’s respiratory symptoms and fever were mild, he did develop “significant fatigue” which had decreased. Occupational health reported that Mr Burke was medically fit to return to work on a phased return to gradually increase shift times and that it was “unlikely” that the disability provisions of the Equality Act 2010 would apply.
Mr Burke did not return to work. He wanted to but felt that the effects of COVID had “peaks and troughs” – on some days he felt he was improving and then he would feel worse and suffer extreme fatigue. He was signed off again and referred again to occupational health. The second report also indicated that the Equality Act 2010 would not apply in this case. Mr Burke suffered a further relapse, and he was signed off work again with post viral fatigue syndrome.
Discussions followed regarding an intention to combine the drug crisis operation with the homelessness service at Turning Point Scotland, and Mr Burke was concerned about night shift changes and his role. Mr Burke was then dismissed during this consultation period in August 2021 on the grounds of ill-health, based on the occupational health reports which suggested that he was too ill to work and the fact that no adjustments could be made to facilitate his return. As a charitable organisation, Turning Point said that it was not able to hold Mr Burke’s post open.
Mr Burke consequently issued a claim on the grounds of disability and age discrimination, unfair dismissal and failure to pay a redundancy payment.
A preliminary hearing was held to decide whether or not Mr Burke was disabled within the meaning of the Equality Act 2010, for the time concerned between when he tested positive in November 2020 and when he was dismissed in August 2021. For these purposes, a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. The tribunal concluded that he was disabled during that period.
The tribunal acknowledged long COVID or “post viral fatigue syndrome” in this case as being a physical impairment. The effects related to his day-to-day activities, given that he could not e.g. walk to the shop to buy a newspaper, help with household chores, go shopping or concentrate for long periods. His sleep was disturbed, and this affected his socialising. These were more than minor or trivial effects. The effects were not consistent, but his symptoms were likely to recur.
It was also noted that the nature of this condition is very difficult to predict in terms of when it may be resolved. Turning Point had said when dismissing him that it was not known when, if at all, Mr Burke would be able to return. The effects started in November 2020 and the tribunal found that it could well be the case that the condition and effects would have lasted until the end of November 2021. Therefore, it satisfied the “long-term” requirement meaning that it was likely to last 12 months or more.
Mr Burke’s claims will be considered on their merits at a later hearing.
Long COVID is a new concept for employers to manage. One of the key issues for employers to consider is how the person is affected; the effects vary from person to person and with limited information available each case must be assessed on an individual basis. One of the particular challenges with long COVID is its fluctuating nature, and as can be seen from this case, it can be more difficult to reintegrate an employee back into work through a “standard” phased return. Some adaptations to policies and procedures may therefore be required as a result.
If the effects are likely to last for 12 months or more then the employee may be classed as disabled, and this will trigger the duty to make reasonable adjustments. Occupational health should be involved at an early stage in any event and may need to be referred to a number of times as the condition progresses, but please note the reminder in this case that only an employment judge can decide whether someone is disabled for the purposes of the Equality Act 2010 with reference to the legal definition.
If you have any queries in relation to the content of this alert or would like to discuss any training requirements please contact our employment team on 01228 552600 or 01524 548494.