Long covid recognised as disability in landmark tribunal

An employee with long Covid has won an employment tribunal for unfair dismissal, becoming the first person to successfully claim that the condition should be classed as a disability.

Scotland resident Terrance Burke was sacked from his job as caretaker at charity Turning Point Scotland in August 2021, where he had worked since 2001.

Burke had been unable to turn up to work for nine months after suffering substantial and long term side effects from Covid-19, which he first contracted in November 2020.

After initial flu-like symptoms, Burke was left with severe fatigue and joint pain which rendered him unable to come to work.

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The tribunal gave Burke permission to bring a disability discrimination case to his former employer after ruling that the condition he described amounted to a disability under the Equality Act.

Catherine Turner, employment partner at law firm Bryan Cave Leighton Paisner, said that the ruling should make employers think about how they deal with long Covid cases.

Speaking to HR magazine, she said: "Employers should note this decision and consider carefully any steps taken in respect of employees who are off sick because of long Covid or what could be long Covid."

Turner suggested that Burke's case was aided by his inability to attend face to face GP appointments, meaning the tribunal therefore was willing to accept less evidence. 

“Medical evidence is key in disability claims and the onus is on the individual bringing the claim to prove disability," she added.

"While the rules are not different for long Covid, what is apparent is that there was not as much medical evidence in this case to support the ex-employee’s case as one would have expected.

"While credibility of the claimant was (and is always) key, the fact that there were severe restrictions with GPs holding face to face meetings for part of the relevant period played a part in the tribunal’s decision to accept the minimal medical evidence that was presented."

The case isn't a blanket ruling for all long Covid disputes however, Turner added. 

She said: "The decision does not mean that all those with long Covid will be disabled for employment law purposes. Each case will continue to be decided on its own facts and the legal test and the questions that the tribunal needs to answer remain the same.

"This is a tribunal decision only which means that it does not need to be followed by tribunals in later cases."