Landmark ruling that “Long Covid” should be classified as a disability

Last month’s statement by the Equalities and Human Rights Commission that “long Covid ” should not be treated as a disability, gave rise to a media storm and panic for many employees who suffer from this condition and are struggling to have their needs met in the workplace.

In a landmark decision on 20th June the Scottish Employment Tribunal ruled that caretaker Terence Burke, who suffers from long Covid can bring a disability discrimination claim against his former employers, the charity Turning Point Scotland. Will this, as some commentators fear, instigate an “avalanche” of similar claims?

Given the details of Mr Burke’s ill health it seems clear that the Tribunal made the correct decision, but not all sufferers from long Covid will experience such extreme disability. As the law stands, it is for the courts (in the case of employment claims, the Tribunal system) to determine what constitutes impairment on a case by case basis, using the Equality Act criteria (a physical or mental impairment that has a substantial and long term adverse effect on everyday life). Ultimately, therefore, any condition that can be shown to meet the Equality Act criteria can be used to support a claim.

The Tribunal’s ruling will not necessarily mean that Mr Burke’s claim will be successful, but it may encourage employers to review their approach to staff who have suffered long term effects from contracting Covid. This is by no means a minor issue. Last year a survey by the TUC found that out of 3,500 workers 29% said they had experienced the symptoms of “long Covid” for more than one year. More recently, the CIPD’s health and wellbeing survey revealed that just under half of the employers surveyed (46%) had employees who have experienced – or are experiencing – long COVID. Long COVID is now a major cause of long-term absence and that is obviously going to have an impact on the workplace.

There is sometimes a perception that people may take advantage of vaguely defined conditions such as “long Covid” but in fact, the same CIPD survey found that presenteeism – continuing to work whilst unwell – is an ongoing problem, particularly for those working from home (81% versus 65%). A workplace culture where people feel they cannot take time off when they are unwell, is bad not just for the individual but for the workplace and society as a whole, as we witnessed during the Covid pandemic.

Unfortunately, the medical community are still uncertain as to the nature of “long Covid.” There is no statutory definition and symptoms can vary widely, which led the EHRC to make their (perhaps ill advised) statement. Thankfully the EHRC has now agreed that long Covid may amount to a disability for a particular individual provided the Equality Act definitions are met. The Scottish Court’s decision will furthermore ensure that the effects of this difficult condition receive greater recognition.

If you are an employer managing employees with “long Covid” contact Zoe on 0203 858 9765 or email zoe@mulberryssolicitors.com for expert advice and guidance through the capability process.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.