13th October, 2022
An update on COVID-related disability
As we turn the corner on the COVID 19 pandemic, discourse is now turning to the effects of COVID-related disability and long covid. The symptoms can include; fatigue, shortness of breath and cognitive problems affecting thinking and memory. These symptoms can come and go but have an impact on the person`s everyday life and cannot be explained by another health problem.
We explored the decision in the recent employment tribunal claim of Burke v Turning Point Scotland ETS/4112457/2021, where the tribunal confirmed that Mr Burke`s illness of long covid did amount to a disability. A link to this article can be found here.
A tribunal ruling on a more recent case has further clarified the circumstances in which covid can be seen as a disability by drawing a line between the effects of covid and the effects of long covid.
The case of Quinn v Sense Scotland ETS/4111971/2021
Mrs Quinn was employed as Head of People and had tested positive for covid in or around 11 July 2021. She subsequently experienced fatigue, shortness of breath, pain and discomfort, headaches, and brain fog. These symptoms affected her everyday life and disrupted her sleep. On 27 July she was dismissed from her employment. She consulted with her GP on 2, 8 and 22 August, during which time she was deemed unfit to work due to ongoing symptomatic COVID-19. On 12 September, she was deemed unfit to work due to post-COVID-19 syndrome and diagnosed with long COVID.
Mrs Quinn brought a direct disability discrimination claim among other claims. She relied on the impairment of long COVID including having COVID-19 for longer than normal. She submitted that COVID-19 and long COVID are part of the same condition, and that other 50-year-old women with no underlying health conditions recovered more quickly than her after two weeks. Consequently, it could have been predicted that she would experience long COVID.
The Tribunal found that she was not disabled under the EqA 2010 for the following reasons:
- At the time of her dismissal, she did not have long COVID. She was not diagnosed with long COVID until some six weeks later.
- While the impairment of COVID-19 had a substantial adverse effect on her ability to carry out normal day-to-day activities, this effect had lasted only two and a half weeks at the relevant time and was not long term.
- Most people who catch COVID-19 do not develop long COVID. Accordingly, it cannot be said that the risk of developing long COVID “could well happen”.
What does the case tell us about covid-related disability and long covid?
This recent case shows the importance of distinguishing between COVID-19 and long COVID where the former is not known to have a long-term affect. Whilst there is a possibility that a person could develop long COVID after suffering from COVID- 19, a mere possibility is not enough to meet the definition of disability. Furthermore, it emphasises that the employee must suffer from a disability during the relevant period to be protected. Nevertheless, it entrenches the position that long COVID can indeed be classed as a disability if it is likely to affect the individual for a long period of time and as such employers should be mindful of the possibility of employees developing long COVID after recovering from COVID- 19.
If you require legal advice relating to covid-related disability in the workplace or have an employment related matter you would like to discuss, please get in touch with our team by completing the form below.
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