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An employment tribunal has held in Burke v Turning Point Scotland that an employee with long Covid symptoms was disabled within the meaning of the Equality Act 2010 (EqA 2010).

Mr Burke was employed as a caretaker from April 2001. In November 2020 he caught Covid and, after initially mild symptoms, developed severe headaches and fatigue. After waking, showering and dressing, he had to lie down to recover. He struggled standing for long periods and could not undertake household activities like cooking and shopping. He experienced joint pain, a loss of appetite, a reduced ability to concentrate and difficulties sleeping. The symptoms were unpredictable and sometimes he would experience improvement only to suffer from fatigue and exhaustion again. From January 2022, his health began to improve, but sleep disruption and fatigue continued to affect his day-to-day activities.

Mr Burke remained off work from November 2020. Two Occupational Health reports stated he was fit to return to work and that the disability provisions of the EqA 2010 were unlikely to apply but later fit notes referred to the effects of long Covid. Relapses of his symptoms (in particular, fatigue) meant that he did not return to work. He was dismissed in August 2021 because of ill health and brought disability discrimination claims.

As a preliminary issue the tribunal concluded that Mr Burke was disabled during the relevant period. It considered that he was not exaggerating his symptoms and had a physical impairment (post-viral fatigue syndrome caused by COVID-19), noting that there was no incentive for him to remain off work when he had exhausted sick pay. The physical impairment had an adverse effect on his ability to carry out normal day-to-day activities, and was more than minor or trivial. It was also the case that the impairment could well last for a period of 12 months (from the date of dismissal). The tribunal noted that the employer's own view was that there was no date when a return to work seemed likely.

Take note: This is the first time that a tribunal has considered the issue of whether long Covid can amount to a disability. Although in this instance it found that it was, it will not necessarily be a foregone conclusion. As the Equality and Human Rights Commission (EHRC) noted in its statement on the issue last month, "long Covid" is not among the conditions listed in the Equality Act as ones which are automatically a disability. However, it may amount to a disability in individual cases if it has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities.