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Long Covid is now classed as a disability in landmark tribunal case.

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A charity caretaker has become one of the first people to successfully claim that their symptoms of long Covid amounted to a disability.

An employment tribunal heard that the claimant was dismissed on “ill-health grounds” after he was unable to work for nine months after suffering substantial and long-term side effects from Covid-19, which he first contracted in November 2020.

However, the claimant claimed he was unfairly dismissed and discriminated against based on disability and age – with his disability being long Covid – adding that his employer failed to provide a redundancy payment.

While the tribunal has not yet passed judgment on whether the claimants dismissal was unfair, in a preliminary hearing it ruled that, in this instance, the claimant’s long Covid did amount to a disability under the Equality Act.

The Employment Judge concluded that the claimant’s condition had a “long-term substantial adverse effect”, meaning it was likely to last for a period of 12 months and that his impairment did have “an adverse effect on day-to-day activities”.

“I consider that the relevant tests are met to meet the definition of disability, and that the claimant was a disabled person in the period of the alleged discriminatory acts,”.

Employers may now be worried that staff could launch disability discrimination claims using the “wide spectrum” of possible long Covid symptoms. As such, employers must double down to ensure that appropriate procedures for sick leave and support are in place.

The claimant was employed as a caretaker for the Respondent from April 2001 until August 2021. The tribunal heard that the claimant and his wife contracted Covid in November 2020 and he described his symptoms as “flu like” over his isolation period. However, after the isolation period he developed severe headaches and fatigue.

The claimant told the tribunal that, during the time following isolation, after “waking, showering and dressing” he would need to lie down to rest from exhaustion and that he struggled with standing for long periods. He would walk to his local shop to buy a newspaper, but that became difficult, and he stopped.

He reported other symptoms, including joint pain in his arms, legs and shoulders, a loss of appetite, problems concentrating and problems sleeping. The tribunal noted the claimant did not feel well enough to socialise or attend important events including his uncle’s funeral in December 2020.

During this time, the claimant had several consultations with his GP, where he was diagnosed with post-viral fatigue syndrome and received several extended sick notes.

The claimant did not work for the nine months between testing positive for Covid and his dismissal; however, during that time, he did have a telephone consultation with occupational health (OH). The subsequent report, provided by OH in April 2021, concluded Burke was “medically fit to return to work”, advising a phased approach. It also concluded that it was “unlikely” that the disability provision in the Equality Act would apply to the claimant.

There was a follow-up consultation in June, and the claimant was dismissed on 13 August 2021 on grounds of ill-health.

The claimant’s dismissal read: “It is my view that you remain too ill to return to work and there appears to be nothing further we can do to adjust your duties or work environment that would make your return more likely.  

“In addition there does not appear to be a potential date on which there is a likelihood of you being able to return to full duties in the future and due to uncertainty around a potential work date.”

The Employment Judge ruled that while the claimant had not suffered “substantial adverse effects in a consistent manner” from his long Covid, his symptoms were likely to recur and therefore should be deemed to have a “long-term effect within the parameters of the legislation”.

The case will now proceed to a hearing in respect of the claims of discrimination arising as a consequence of disability, indirect disability discrimination and failure to make reasonable adjustments.

It would be wise that employers should now assume that long Covid is a disability so the relevant advice guidance and support should be put in place.

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