Second Employment Tribunal determines Long Covid can be a disability

Last month the EHRC supervised a fiasco when it issued guidance that Long Covid could not a disability. It was a legal nonsense but, given the position it holds, the guidance was damaging in potentially giving employers a false sense of security and dissuading victims of discrimination asserting their rights. I posted a number of posts on this at the time (here, here, and here).

As the first link shows at the time the EHRC guidance (7 May 2022) there was already a Employment Tribunal decision from two month’s previous, in Matthews v Razors Edge Group Limited (2022), that had made a finding that Long Covid could be a disability and that in the particular facts of the case the claimant was so disabled.

This month a further Employment Tribunal decision has made a similar decision in Burke v Turning Point Scotland (2022). The judgment is well worth the read to show what evidence can be shown and how an employment tribunal will assess whether a person is disabled under the Equality Act 2010.

Neither the Matthews or Burke decisions are unexpected, the legal test for establishing disability in conditions such as Long Covid is expressly set out in section 6 of the Equality Act:. Section 6 of the Equality Act provides a definition of “disability” as follows: (1) A person has a disability if: (a) The person has a physical or mental impairment, and (b) The impairment has a substantial and long term adverse effect on the person’s ability to carry out normal day to day activities.

For employees the relevance of this case is I think threefold.

Firstly, although the number of cases will surely rise in the next year or so many employer’s will not be used to treating Long Covid as disability and so, if the diagnosis is raised, may not be alert to the possibility this may amount to a disability. There is of course no rule that every person who has Long Covid will be a disabled person but the existence of the condition will at least raise the prospect that it may be and employees should expressly inform employers that they think this may apply (this is not a strict legal requirement but will drastically reduce the scope for an employer to justify inaction).

Secondly, related to this lack of awareness if employer’s occupational health advisors or GP’s are asked for advice they may also not be used to the idea of Long Covid being a disability in the same way that they are with other more established health impairments. In Burke the employer had received advice that the Long Covid symptoms was unlikely to be a disability – as the Employment Tribunal judgment shows this was poor advice that may have been relied upon to potentially lead the employer into unlawful discrimination. If an employee believes they may be disabled because of Long Covid (but the advice holds good for other impairments too) and are asked to engage with occupational health advisors then this is normally advisable. However, it is a mistake to just go into a meeting with a diagnosis – health impairments are personal and affect people in different ways. It is important to think about how it has affected you personally and what activities you cannot do as well now as you could before and how long this has or will last. That is the type of information it is essential to communicate as a good occupational health report that is focussed on how you are affected can be useful to both employee and employer to avoid possibility of a later dispute.

Thirdly, the decisions of Matthews and Burke are first tier decisions of the Employment Tribunal so they are not binding on other Tribunals. However, there is nothing really different about how whether Long Covid is assessed that is different to other prospective disabilities so the law is settled. Where employers question whether Long Covid can be a disability then handing over a copy or otherwise citing these two decisions may be helpful. In Burke the tribunal placed some weight on the TUC research on how Long Covid has affected workers – this appears to be this guidance and research. This is also good evidence a worker can highlight with the employer.

So, although the second (so far as I am aware) judgment that Long Covid can be a disability is not a surprising one it is still a helpful decision for workers to highlight to employers who are sceptical and, therefore, are not being proactive in ensuring they do not discriminate against their workers.

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