Cases of long Covid could be classified as a disability after a recent employment tribunal case, a legal expert has warned charities.
Writing in the September issue of Charity Finance magazine, Gavin McEwan, partner and head of charities at Turcan Connell, 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).”
He said: “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.”
Burke suffered from various unpredictable symptoms of long Covid, including severe headaches, a need to rest after performing simple household or personal tasks, disturbed sleep patterns and poor concentration.
Occupational health
His employer referred him to occupational health assessment twice during the period he was signed off sick.
Both times, “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”, McEwan explained.
However, Burke suffered relapses and did not return to work.
Turning Point Scotland dismissed him in August 2021 on the grounds that he was too ill to work and that it “appears to be nothing further that we can do to adjust your duties or work environment that would make your return more likely”.
Tribunal decision
The employment tribunal did not have to decide if Burke suffered from long Covid, but whether the degree of his impairment met the definition of a disability.
The tribunal considered that the definition of a disability was met.
McEwan wrote that “each case has to be considered on its own facts,” and that the decision does not 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,” he concluded. “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.”
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