According to the Office of National Statistics, as of 4 June 2022, an estimated 3% of the UK population (2 million people) are said to be experiencing self-reported long Covid symptoms.
In the recent decision of Burke v Turning Point Scotland, the Employment Tribunal held that Burke’s diagnosis of long Covid could amount to a disability under the Equality Act 2010.
Symptoms
According to the NHS, post-COVID-19 syndrome (known colloquially as ‘long Covid’) can cause symptoms that last weeks or months after the infection has gone. The most common symptom is fatigue, followed by shortness of breath, loss of smell and muscle ache, however there are a range of other possible symptoms including insomnia, dizziness, depression and anxiety, nausea and chest pain – to name a few.
Notably, 72% of long Covid sufferers reported that symptoms negatively impacted their ability to perform day-to-day activities, with 21% reporting that this ability had been ‘limited a lot’. Whilst the length of these symptoms varies (most individuals recover within 12 weeks, but symptoms can last significantly longer), it is also significant that symptoms may fluctuate within the syndrome experienced, such that a person’s symptoms of depression or chest pain appear to come and go throughout the period of long Covid.
Disability
A disability can be defined through four essential questions:
- Does the individual have a physical or mental impairment?
- Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities? (”normal” being activities that people do on a regular or daily basis. Guidance to the Equality Act gives specific examples and provides that this does not include ‘activities which are normal only for a particular person or small group of people’)
- Is that effect substantial? (”substantial” being more than minor or trivial, which is expounded upon in case law)
- Is that effect long-term? (it must have lasted or be likely to last for at least 12 months, or be likely to last for the rest of the person’s life)
Practical impact
Employers need to be careful not to treat an employee less favourably because of their condition and look to make reasonable adjustments to working practices where possible.
Adjustments could include more flexible hours or arrangements to work from home (for example, if an employee suffers from insomnia, chest pain or breathing problems and may therefore struggle with the commute or regular working hours).
Medical reports are always a sensible option. However, as seen in Burke, even though two occupational health reports were obtained by the employer that stated that Burke was not disabled, this did not prevent a Tribunal reaching a different conclusion.
Whilst Burke is fact specific and remains a first instance decision which means that it does not bind other Tribunals, it is likely to be one of many decisions that find the impact of long Covid can amount to a disability so it is a helpful reminder to employers not to be dismissive of medical conditions that will continue to evolve and fluctuate in terms of severity over time.