Sadly, many of us are aware of friends, family or employees who are or have been suffering from long covid. Symptoms include shortness of breath, cognitive dysfunction or brain fog and fatigue. Symptoms can last for up to nine months or longer and as at May 2022 there were estimated to be 1.8 million people in the UK (2.8% of the population) suffering from this. Recently, an employee with long covid won an Employment Tribunal claim for unfair dismissal, successfully claiming that the condition should be classed as a disability.
Under the Equality Act 2010 you are disabled if you have a physical or mental impairment which has a ‘substantial and long term’ (likely to last at least 12 months) negative effect on your ability to do normal daily activities. Scotland resident Terence Burke was sacked from his job as a caretaker at charity Turning Point Scotland in August 2021 where he had worked for 20 years. Burke had been unable to turn up to work for nine months after suffering substantial and long term side effects from covid-19.
Burke was dismissed on grounds of ill health. His employer received two occupational health reports, both of which stated it was ‘unlikely’ that the provisions of the Equality Act regarding disability would apply to Burke. However whether or not a person’s condition constitutes a disability is a legal question for a Tribunal and therefore medical opinions on this should be treated with caution.
In disability claims the onus is on the employee bringing the claim to prove disability. However as Burke was unable to attend face to face GP appointments, the Tribunal accepted less evidence than would usually be the case. The restrictions on GPs holding face to face meetings during the pandemic also influenced the Tribunal’s decision to accept minimal evidence. However this does not mean that all those with long covid will be considered disabled for the purpose of employment law – each case will be decided on its own facts.
It should be noted that this is a first instance decision and may not be binding on other Tribunals. However it may lead to claims by other employees who feel they have been unfairly treated as a result of having long covid. Employers need to demonstrate that they have made reasonable adjustments to help employees suffering with long covid. They should keep an open mind and engage in dialogue with employees.
If you would like advice regarding employees with long term absence please get in touch via firstname.lastname@example.org
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This post was written by SKHR