28 June 2022
An employment tribunal has determined that the physical impairment of post viral fatigue syndrome caused to an employee by coronavirus in the period from 25 November 2020 to 13 August 2021 met the tests of the definition of disability under the Equality Act 2010. Therefore, the dismissed employee was entitled to claim he was discriminated against because of his disability.
The employee had fluctuating symptoms including extreme fatigue, joint pain, lack of mobility, sleeplessness and general lack of energy. After waking, showering and dressing, he had to rest from exhaustion. He could not, as he had done previously, walk to the nearby shop to collect his paper or help with cooking and ironing chores or shopping. He had difficulty reading for any length of time or following a TV programme and his sleep was disturbed. This impacted his socialising too.
His inability to work was medically certified throughout by his GP. However, occupational health reports obtained by his employer in April and June 2021 concluded he was medically fit to work. The employee’s sick pay ended in June 2021.
On 13 August 2021, the employer dismissed the employee because:
- he remained too ill to return to work;
- there appeared to be nothing further the employer could do to adjust his duties or work environment that would make his return more likely; and
- there did not appear to be a date when he would be able to return to full duties in the future.
The Tribunal decided, as a preliminary issue, that
- the employee suffered from the physical impairment of post viral fatigue syndrome caused by coronavirus; and
- that impairment had a substantial and long-term adverse effect on his ability to carry out normal day to day activities.
The Tribunal referenced a TUC report: ‘Workers’ experience of Long Covid’ related to evidence of ‘Long Covid’, where 29 per cent of its responders experienced symptoms for 12 months or more; the most common symptom was fatigue; the symptoms varied over time and were worse on some days than others.
The test whether the substantial adverse effect would be ‘long term’ was assessed by whether the effect of the impairment was ‘likely to last’ for at least 12 months, such that it ‘could well happen’ that the condition would continue until 25 November 2021. Since, in August 2021, the employer accepted that no date for return to work could be projected, the Tribunal felt its continuing until 25 November could well happen. Therefore, the employee qualified as disabled under the Equality Act 2010.
Whilst this is only a Tribunal decision, it is a reminder that intermittent symptoms of Long Covid may mean a worker suffers from a disability, even where they have days of feeling well enough to work, if it could well happen the symptoms will last for 12 months. In those cases, additional care needs to be taken to ensure the employer complies with its positive obligation to consider reasonable adjustments and when decisions are taken that could impact the workers’ continuing employment.
If you are an employer and you would value support with managing disabled employees in the workplace, please contact Charlie Barnes.