A recent employment tribunal highlights that employers should be mindful when managing employees with long Covid, as Natasha Letchford, Associate, Wilsons Solicitors LLP, explains...
With more than 1.5 million people expected to be suffering with prolonged Covid side effects and Covid infections on the rise once again, long Covid will be a concern for many employers.
In a recent decision, the Scottish Employment Tribunal confirmed that long Covid can be a disability under the Equality Act 2010 (EqA), highlighting the importance of managing staff with long Covid carefully to reduce the risk of costly discrimination claims.
In the case of Burke v Turning Point Scotland, Mr Burke claimed that he had been unfairly dismissed and discriminated against on the basis of his age and disability, when his employer, a charity offering support to individuals with addiction or mental health issues, terminated his employment as a caretaker.
Background
Mr Burke tested positive for Covid-19 in November 2020 and developed severe headaches and fatigue following the isolation period. As a result, he could not stand for long periods, could not undertake household activities such as cooking and shopping, had difficulties concentrating and sleeping and felt unable to socialise.
Mr Burke remained off work from November 2020 until August 2021 when he was dismissed on the basis of ill-health capability. During that period, he had various fit notes from his GP referring to long Covid and post-viral fatigue syndrome. His employer also requested two occupational health reports for him, both of which stated that he was fit to return to work and that Mr Burke's condition was unlikely to meet the definition of a disability under the EqA.
Decision
The Tribunal was required to decide the preliminary issues of whether Mr Burke was disabled and concluded that he was. The key points they considered were as follows:
- The Tribunal considered that Mr Burke was not exaggerating his symptoms and that he genuinely had a physical impairment which affected his ability to carry out day-to-day activities. The Tribunal noted that he had exhausted his sick pay so there was no incentive for him to remain off sick.
- The Tribunal referred to the fact that little detail was provided in Mr Burke's fit notes and there was a lack of medical evidence to support his diagnosis. However, they believed this was as a result of the restrictions on in-person GP appointments and should not reflect on the credibility of his account of his symptoms.
- The Tribunal accepted that Mr Burke's condition fluctuated from day to day but believed that at the date of his dismissal they "could well" have lasted for a period of 12 months. They noted that Turning Point had acknowledged that there was no date when a return to work seemed likely.
The decision was on this preliminary issue only so the Tribunal did not consider whether Mr Burke's dismissal was unfair or discriminatory.
Practical tips
Although the determination in this case does not mean that all employees with long Covid should be considered to have a disability, employers should be mindful of it when managing employees with long Covid symptoms and, in particular:
- Ensure that employees with long Covid should be treated in the same way as those with other long-term medical conditions. This should include following the sickness absence or ill-health capability policy and considering Acas guidance.
- Ensure that they gather as much information as possible about the employee's health. If an employee's sick notes lack detail or an employer is unsure about the employee's prognosis, they should obtain an occupational health report. Employers should be wary about relying on OH advisers to determine whether an employee is disabled, which is a legal question, but the details about the symptoms and expected recovery time will be useful in making that determination.
- Make reasonable adjustments where necessary. It is sensible to err on the side of caution and listening to an employee's concerns then making adjustments in the initial stages may be sufficient to get the employee back to work.
About Wilsons Solicitors LLP
Wilsons Solicitors have a reputation for integrity, independence and tenacity. As one of the UK’s top two charity law firms, Wilsons' specialist experience helps you unravel the diverse challenges of this sector. Alongside the niche expertise the firm offers in military charities and care homes, they can also help you manage governance, litigation and disputes, legacies and more.