25th July 2022 | Emma O’Meara | employment, disability, tribunal
In a recent landmark legal case, an employment tribunal ruled that the symptoms brought about by long-COVID may be classed as a disability within the definition of the Equality Act 2010.
In this case, the Claimant, Terence Burke, was a caretaker who had been off sick for 9 months after experiencing substantial and long-term effects from COVID-19 after contracting the virus in November 2020. Following a number of fit notes and occupational health reports referencing long-Covid and post viral fatigue syndrome, Mr Burke was dismissed on the grounds of ill health in August 2021. He subsequently brought claims of disability discrimination and unfair dismissal. The tribunal held at a preliminary hearing that Mr Burke was disabled between the period he contracted the virus and his dismissal and therefore his claim for discrimination was permitted to proceed.
What is long-COVID?
COVID-19 can cause symptoms that last weeks, months or longer after the infection has gone. This is called “long-COVID” and typical symptoms include: fatigue; brain fog; insomnia; depression and anxiety; chest pain; heart palpitations; dizziness; joint pain and shortness of breath, amongst others.
This decision does not mean that employees with long-COVID will automatically be deemed to be disabled under the Equality Act – whether they are or not will depend on the specific facts of the case.
In order to support an employee with long-COVID, and protect the business against claims for disability discrimination, you should consider taking the following steps:
- Communication – Talk to your staff about their condition, the symptoms they experience, whether there are any patterns (e.g. are the symptoms worse at a particular time of day), and whether they feel that their symptoms impact their ability to work, or get to/from work. In order to ensure compliance with the UK-GDPR, the employee should be asked how they want their manager to communicate with the rest of the team about their condition.
- Occupational Health Referral – Consider a referral to gain a medical opinion about the employee’s condition and what reasonable adjustments the business should consider.
- Support – make sure the employee is comfortable with keeping you updated on their condition and what adjustments they might need. Offer details about any employee assistance programme, counselling or other resources which might be available.
- Train managers – anyone who manages staff should have training on how to handle sensitive or difficult conversations, especially in relation to employees’ health and well-being. Specifically, managers should be trained on the company’s relevant policies and how to manage an employee suffering from long-term conditions.
- Policies – You should review and update relevant policies such as equal opportunities and sickness absence policies, to ensure they are fit for purpose and non-discriminatory.
Although not legally binding, this recent tribunal decision is likely to encourage more claims from employees suffering with long-COVID. With infection rates still climbing, employers will also likely see increasing numbers of employees diagnosed with long-COVID, so it’s important to know how best to manage and support them.
If you would like further information about managing disabled staff or delivering training to managers, please contact the Employment team by clicking here, or speak to Employment Associate Emma O’Meara.