Will 'Long Covid' be a Disability?

In a pioneering decision on the impact of post-viral fatigue syndrome, otherwise known as Long
COVID, an Employment Tribunal has held that an employee was considered to be ‘a disabled person’
for the purposes of the Equality Act 2010 due to suffering from Long COVID over a nine-month
period.

The individual in questions was a caretaker for a charity and contracted the virus in November 2020.
After his isolation period ended the ‘normally active’ caretaker reported suffering ongoing symptoms
ranging from fatigue and exhaustion, headache, loss of appetite, and a ‘wrecked’ sleep pattern, to
joint pains in his arms, legs and shoulders. Because of this, he was unable to return to work until
August 2021, when he was dismissed. He alleged the dismissal was as a result of his long absence
and issued a claim in the ET.

His employer accepted that he had a physical impairment from November 2020 to June 2021 (when
his sick pay ended) but did not accept this after this period. The employer’s stance was that there
was limited medical evidence and, in reality, he did not want to return to work due to a team
restructure.

The employee gave the ET detailed evidence pertaining to his symptoms. He asserted that for the
nine months after his isolation terminated, he was unable to perform basic activities such as cooking
or concentrating while reading, dressing, and walking as they became too difficult for him. He
acknowledged a fluctuation in his condition, having felt some improvements at times, followed by a
recurrence of the symptoms, though fatigue and lack of sleep remained constant.

At a preliminary hearing, the ET had to decide whether he was disabled within the meaning of the
Act. The Employment Judge was satisfied that the physical impairments reported by him met the
relevant test and did indeed amount to a disability. The Judge accepted that sufferers would have
good days and bad days but that this did not discount the fact that the symptoms were long-term.
As a result, his claims for disability and age-based discrimination, in addition to his unfair dismissal
claims, will now proceed to a final tribunal hearing.

This decision is one of very few which has addressed the issue of Long COVID. What is important to
note is that ‘Long COVID’ itself is not automatically a disability as the symptoms reported by Long
COVID sufferers are varied. Rather, this judgment highlights that fact that employers need to look at
those symptoms when determining whether an employee may or not be disabled for the purposes
of the act as every case will turn on its facts. Employers should adopt the usual approach of
obtaining sufficient medical evidence and making reasonable adjustments for any employee who
reports they are suffering with Long COVID as simply claiming that they suffer with it will not be
enough to satisfy the test.
If you have any such concerns, please do get in touch with us for further guidance