While long covid may not meet the definition of a disability, the severity of symptoms could.
A legal expert has warned charities that cases of long Covid could soon be classified as a disability following the outcome of a recent employment tribunal.
In a recent Scottish case, Burke v Turning Point Scotland (Employment Tribunals (Scotland) case 4112457/2021), the tribunal considered that the definition of a disability was met.
The claimant, Burke, suffered from various “unpredictable” symptoms of long Covid.
These included severe headaches, a need to rest after performing simple household or personal tasks, disturbed sleep patterns and poor concentration.
Turning Point Scotland referred him to occupational health twice during his period signed off sick.
On both occasions, the outcome was a report that Burke was fit to return to work and that his illness was ‘unlikely’ to meet the test of disability under the Equality Act.
The case was discussed in the September issue of Charity Finance magazine by Gavin McEwan, partner and head of charities at Turcan Connell.
He said: “How equality legislation applies to those affected by long-Covid, however, had not been explored in detail until a recent Scottish employment tribunal case, Burke v Turning Point Scotland (Employment Tribunals (Scotland) case 4112457/2021).
“As an essentially invisible illness, this requires employers to be even more alert to how to recognise and respond to invisible illnesses, and to explore what flexibility can reasonably be put in place to support staff who are affected.”
The legal expert wrote that “each case has to be considered on its own facts”, and that the decision does not mean all cases of long Covid will be defined as a disability.
He added that while the tribunal found Burke’s long Covid to be a disability, it “does not automatically follow that the employer discriminated against Burke and so the case continues”.
“It nevertheless flags the risk that discrimination can arise when dealing with invisible conditions such as long Covid.
“The risk of financial exposure when employers, in the charity sector and beyond, fail to identify a disability and to respond appropriately is all too apparent.”