The first Employment Tribunal case to determine that an employee with long COVID was disabled within the meaning of Section 6 of the Equality Act 2010 has taken place. The employee was a caretaker and he tested positive for COVID-19 in November 2020. Initially, he was experiencing mild symptoms. After isolating, he developed severe headaches and fatigue that were so severe that after simple acts like having a shower or getting dressed, he had to lie down and recover. He struggled to stand for long periods. He couldn’t undertake household activities like cooking, ironing or shopping. He experienced joint pain, loss of appetite, a reduced ability to concentrate and difficulty sleeping. This all led to him feeling unable to socialise. His symptoms were unpredictable: he would experience an improvement, only to suffer from fatigue and exhaustion again.

In January 2022, so after a few months, his health began to improve but the sleep disruption and fatigue continued to affect his day to day activities. His notes referred to long COVID Post Viral Fatigue Syndrome. The employer obtained occupational health reports which both indicated that he was fit to return to work with a view that the disability provisions of the Equality Act were unlikely to apply. However, due to his fatigue levels and the fact that he didn’t return to work, in August 2021 because of ill-health, his employer dismissed him when he had been absent from work for 9 months.

The Tribunal has had to determine the preliminary issue of whether he was disabled at the relevant time. It has concluded that he was and that he wasn’t exaggerating his symptoms and had a physical impairment (The Post-Viral Fatigue Syndrome caused by COVID-19). The Judge found it relevant that there was no incentive for him to remain off work when he had exhausted his sick pay. They found that his symptoms were consistent with the June 2021 TUC Report into long COVID and in particular, the fluctuating nature of those symptoms. The physical impairment had an adverse effect on his ability to carry out normal day to day activities and they found that the effect was more than minor or trivial and that it was long term because it could well last for a period of 12 months when viewed from the dismissal date. In particular, they noted that the employer themselves was of the view that there was no date in sight where a return to work seemed likely.

Clearly this case does not mean that the employee will be successful in his claims of disability discrimination – at this stage he has just got over the first hurdle of proving that he had a disability. The Tribunal will have to go onto consider whether or not the dismissal was justified in all the circumstances. In doing that, they are particularly likely to take into account to what extent reasonable adjustments were explored and the process that was followed around the dismissal. This might include considering alternative employment.

Indeed, in another case, the Employment Appeal Tribunal has considered Section 15 of the Equality Act which you will recall is ‘discrimination arising from a disability’ in connection with dismissal following a period of absence. When Section 15 is raised, the Tribunal is going to be considering whether dismissal was a ‘proportionate means of achieving a legitimate aim’ of the employer. That case reminds us not to act prematurely in dismissing a disabled employee – the employer had grudgingly adopted a trial in an alternative location but failed to implement the trial reasonably or properly evaluate its success before their decision to dismiss. Where there was such an opportunity of work from a different location, a Judge is likely to find that that alternative was a less discriminatory alternative to dismissal that the employer should have taken. Clearly that wouldn’t have helped the employee with long COVID as he wasn’t able to work at all at the stage he was dismissed.

Refreshing Law

24 June 2022