Is Long Covid classed as a ‘disability’ for the purpose of employment law? Can an employee be dismissed if they have Long Covid? Chris Barber discusses a recent case of Burke v Turning Point Scotland which considered these issues. If you have a discrimination issue at work, contact one of our employment solicitors.
Our video contains captions, but if you prefer, you can read the transcript below:
I’m going to discuss a very topical recent case where the court considered the issue of long COVID. It was a Scottish employment case of Burke vs Turning Point Scotland. The claimant, Mr Burke, was a caretaker and tested positive for COVID in November 2020. He did not return to work and was dismissed in August 2021. Mr Burke stated that he suffered with the physical impairment of long term COVID. This included symptoms we are all familiar with, such as extreme fatigue, lack of mobility, severe headaches and sleep disruption.
He brought an action against his employer for disability discrimination in which the first issue to be determined was whether or not he was disabled.
If somebody is dismissed because of them being disabled, it is automatically an unfair dismissal, and conversely, if he wasn’t found to be disabled then it would probably be harder for him to bring an unfair dismissal claim.
The Tribunal heard that his symptoms had fluctuated between November and August and occupational Health Assessments concluded him fit enough to return back to work, and his condition at that point had not yet lasted for 12 months.
However, the Tribunal found that Mr Burke was disabled. It concluded that his physical impairment met the definition of disability as it had an adverse effect on daily activities and that is likely to last more than 12 months, which is one of the definitions of long term disability. They said that his sick pay had ceased in June 2021, so no incentive existed after that point for him to remain off work.
The Tribunal concluded that he could proceed with a claim for disability discrimination. That’s not to say that he would be successful in his discrimination case, but he had the ability to proceed on the basis of being dismissed whilst disabled.
In my view, a slightly strange decision, especially based on the fact that we hear about the Occupational Health evidence and the fact that he was fit to return to work. However, this is not a decision that is binding on other Tribunals and therefore other Tribunals could come to different conclusions.
However, it does show the importance of being mindful of long COVID, but also the wider consideration of going through the correct procedures if employers are looking to terminate an employee who is, or has been on long term sick.