Covid, Disability and The Equality Act 2010

An Employment Tribunal has held that long covid can amount to a disability for the purposes of the Equality Act 2010.

The Equality Act 2010 defines disability as a physical or mental impairment which has a substantial and long term adverse impact on a person’s ability to carry out day to day activities. ‘Day to day activities’ are things people do on a regular basis (shopping, reading, watching TV, getting washed and dressed, preparing food, walking, social activities); ‘substantial’ means more than minor or trivial; and ‘long term’ includes symptoms that last or are ‘likely to last’ for at least 12 months (discounting the impact of any medication).

Long covid is defined by NICE, as “signs and symptoms that develop during or after an infection consistent with COVID‑19, continue for more than 12 weeks and are not explained by an alternative diagnosis. It usually presents with clusters of symptoms, often overlapping, which can fluctuate and change over time and can affect any system in the body…In addition to the clinical case definitions, the term ‘long COVID’ is commonly used to describe signs and symptoms that continue or develop after acute COVID‑19. It includes both ongoing symptomatic COVID‑19 (from 4 to 12 weeks) and post‑COVID‑19 syndrome (12 weeks or more)”.

Signs and symptoms of long covid include fatigue, brain fog, insomnia, depression and anxiety, chest pain, heart palpitations, dizziness, joint pain and shortness of breath, amongst others. Whether these will amount to a disability under the Equality Act 2010 will depend on the extent to which they have a substantial adverse impact on a person’s ability to carry out day to day activities (discounting the impact of any treatment), and whether that substantial adverse impact is likely to last for at least 12 months.

In the case of Burke v Turning Point Scotland, Mr Burke developed severe headaches and fatigue from covid. He would need to lie down after showering and dressing and was unable to undertake usual household activities such as ironing, cooking and shopping due to lack of energy. He was signed off work for a number of months, and his fit notes and occupational health reports citied long-covid and post viral fatigue syndrome. It was not known when Mr Burke’s health would recover to the extent that he could return to work, and on that basis, he was dismissed by his employer following approximately 9 months’ absence. The question for the Tribunal was whether, at/around the time of the dismissal, was Mr Burke disabled?

It was noted that Mr Burke had “good days and bad days” but even on the employer’s own case, at the time of dismissal, it was not clear when his health would improve to extent to which he could return to work. At the time of dismissal, he had been suffering a fluctuating but recurring substantial adverse impact on his ability to carry out day to day activities which had persisted on and off for 9 months, and the Tribunal found that “it could well happen” that the substantial adverse impact on day to day activities would continue for the next three months (i.e. 12 months following his Covid diagnosis). A such it held Mr Burke was disabled.

Every case will turn on its facts; some individuals may experience mild symptoms over a long period of time, or more severe symptoms over a shorter period of time, following which they make a full recovery. In those circumstances, they are unlikely to be disabled under the Equality Act 2010. However, where symptoms do have a substantial adverse impact on ability to carry out day to day activities and show no sign of abating, it is very possible that that employee will be disabled and they will then have a right to the various protections afforded to them under the Equality Act.

In practical terms, and as long covid is increasingly understood, employers will be expected to communicate with their employees to identify the extent of their symptoms and how they are impacted, and to seek medical or occupational health advice where appropriate, to ensure the employee is being supported adequately by way of reasonable adjustments or otherwise.

If you have any questions about this topic, please contact Emma Sangeelee, or any other member of the Employment team at Edwin Coe.

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