Is long COVID a disability?

David Reid
Director
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A recent employment tribunal case has looked at the question of whether long COVID, whilst not currently a condition which automatically constitutes a disability under the Equality Act 2010 (the “Act”), may amount to a disability in law in certain circumstances.

The tribunal decision in this case makes it clear that if long COVID, being a person’s ‘physical or mental impairment’, has a ‘substantial and long-term adverse effect on [the person’s] ability to carry out normal day-to-day activities’ (the legal definition of a disability under the Act), then long COVID could amount to a disability.

This means that employers with employees suffering from long COVID need to be aware that the condition may be a disability for which reasonable adjustments must be made.

In the tribunal case, the employee was employed as a caretaker. He tested positive for COVID-19 in November 2020 and he developed severe headaches and fatigue. He could not do household activities, like cooking, ironing and shopping and experienced joint pain, loss of appetite, reduced concentration and difficulties sleeping. Two occupational health reports indicated that he was fit to return to work and was unlikely to be ‘disabled’ for the purpose of the Act, but he continued to be fatigued and did not return to work, even after his sick pay had run out. The employer dismissed him in August 2021 because of ill health and the employee brought disability discrimination claims, among other claims.

The tribunal considered whether the employee was ‘disabled’ in law and concluded that he was.  It took the view that he was not exaggerating his symptoms and that he had post-viral fatigue syndrome caused by COVID-19 which amounted to a physical impairment which had a substantial adverse effect on his ability to carry out normal day-to-day activities and which “could well” last for a period of 12 months (with lasting 12 months or more, or being likely to last 12 months or more, being the threshold for the “long term” requirement in the legal definition of disability).

This case is the first legal ruling on the issue and makes it clear that employers need to tread very carefully when dealing with employees who say they have long COVID. Also, even though in this case the employer had two specialist reports which suggested that the employee was not likely to be disabled in law, the tribunal still disagreed. Therefore, whilst medical reports are helpful in assessing risk and understanding an individual’s diagnosis and prognosis, they should not be taken as determinative on the question of whether an employee has a disability in law. That is a legal question for the tribunal to answer, and this case shows that tribunals can, and sometimes will, disagree with views expressed by medical professionals.

The full case report can be accessed here.

If you have any questions about employee absence or any other employment law matters further, please do not hesitate to contact a member of the team on 0141 331 5150.

Topics: Coronavirus, Disability Discrimination, Employment Tribunal