Following on from the last post on EHRC’s ill-advised guidance to managers that employers do not consider Long Covid to be a disability under the Equality Act 2010 I thought I would take a look at whether and how this has been considered by employment tribunals to date.
Because of delays in tribunal processes and the fact that awareness of Long Covid is only developing the source material is very sparse; however, it is not true to say there has been no judicial consideration to date. A first tier tribunal decision is still caselaw even though not bonding (although not really relevant here as this is a question of facts, not law) so EHRC claim that there is no caselaw is false.
Below I give a summary of when Long Covid addressed in the context of disability. However, reviewing the tribunal decisions it was apparent Long Covid was raised in a number of cases where disability is not advanced and therefore on unfair dismissal bases only – this may itself indicate that claimants were not alert to the possibility, a trend EHRC’s approach will not help at all.
In no particular order:
Botam v (1) Purosearch Ltd (2) Heronden Veterinary Practice Ltd (2022) alleges perceived direct disability discrimination because of Long Covid. Claim was dismissed as irrespective of whether disability this not material reason for dismissal.
Hill v St Pauls Church of England School (2022) alleges disability discrimination because of Long Covid. This was a preliminary hearing for interim relief in respect of whistleblowing claim and so issue not considered. Long Covid as disability will be an issue to be resolved so a case to keep an eye on.
Queeley v NewDay Cards Ltd (2021) alleged disability discrimination because of Long Covid. Claimant’s case was dismissed as her having Long Covid was not a disability. However, no written reasons for decision given so not of much use.
Dawson v More 4×4 Limited (2021) relies not on Long Covid but Post Sepsis Syndrome (PSS). However, in paragraph 14 the employment judge comments “the diagnosis of PSS depends on the reaction of each individual to PSS and there is a range of symptoms falling within PSS, as there are a range of symptoms falling in the range of Long Covid – symptoms vary according to the individual.” It is these symptoms, whatever the medical cause, that led to conclusion that “she was disabled for a multitude of mental and physical impairments many of which singly could amount to a disability and collectively could be reasonably described as falling within the label of PSS.” As such, there is an recognition Long Covid symptoms can satisfy disability definition.
Matthews v Razors Edge Group Limited (2022) found, contrary to the EHRC’s statement that there was no caselaw, Long Covid was a disability in the claimant’s case (para 51-52). On the impairments it found: “In terms of the claimant’s impairments however, at the time the first respondent was looking to reopen its salon, she was experiencing significant symptoms of recurring chest pains, shortness of breath, tingling in her hands and fingers and headaches. These had a functional impact upon her ability to stand for prolonged periods of time, the ability to carry heavy items and her overall stamina.”
These are all first tier decisions but the case of Dawson and especially Matthews shows that EHRC’s claim that there is no caselaw is false – there have already been decisions confirming Long Covid can be a disability but that this is always fact specific. The Matthews decision in particular may be one union representatives may want to file away and refer to employers in any relevant cases.
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