We’ve had two decisions recently involving claimants arguing that they had long Covid, and that long Covid is a disability for the purposes of disability discrimination.
In one case, Burke v Turning Point Scotland, long Covid was held to be a disability and in the other, Quinn v Sense Scotland, the claimant was unsuccessful in her claim. While this may seem contradictory on the face of it, the reason for the difference is due to the application of the facts to the definition of disability. By way of reminder, someone is disabled for the purposes of the Equality Act if they have a physical or mental impairment which has lasted or is likely to last for 12 months, which has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.
In Burke, the claimant had long Covid for 9 months prior to dismissal. The Tribunal found that he had not exaggerated his symptoms and his condition did have a substantial effect on his ability to carry out normal day to day activities. They held his condition was likely to last 12 months or longer, and so his disability discrimination claim could proceed.
In Quinn, at the time of dismissal she had not been diagnosed with long Covid and it was too soon to know that she had a condition which was likely to last 12 months (2.5 weeks). The tribunal found that while her condition did have a substantial effect, she did not have long Covid at the time and it wasn’t clear she would go on to develop long Covid. The Tribunal found that most people with Covid do recover.
If you have any employees with conditions that could amount to disabilities and need support with the implications, get in touch with one of our team.
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