An employment tribunal in the UK has for the first time ruled that a person’s long-COVID is a disability protected by the Equality Act 2010. However, we must be cautious in assuming that from now on all instances of long-COVID will be a disability – it remains the case, as we wrote in a previous article on this topic, that some cases of long-COVID will be a disability and others will not. Employers should continue to apply the existing statutory test for disability when faced with employees with long-COVID.
In the (still ongoing) case of Burke v Turning Point Scotland, Mr Burke argues that his employer, Turning Point Scotland, discriminated against him because of his long-COVID. As a preliminary point, the employment tribunal had to decide whether Mr Burke’s long-COVID constitutes a “disability” under the Equality Act.
The employee’s symptoms
Mr Burke contracted COVID-19 in November 2020 and was subsequently absent from work suffering from COVID-related symptoms for approximately ten months until his dismissal in August 2021. His symptoms worsened after his isolation period, in particular the fatigue he suffered. For example, he needed to lie down after showering and dressing, and he struggled to walk to the local shop at the end of his block. Other symptoms included joint pain, loss of appetite, sever headaches, and sleeping difficulties. The severity of Mr Burke’s symptoms fluctuated over time.
Over the course of his sickness absence, Mr Burke had various fit notes from...
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