Recently, an employment tribunal in Scotland held that an employee with Long Covid-19 (Coronavirus) was disabled under the Equality Act 2010. This is the first decision of its kind, and will not be the last.
The tribunal’s decision is not surprising. It was only a matter of time until an employment tribunal confirmed that an employee’s Long Covid could be a disability. If it were not for underfunding and under-resourcing in the employment tribunal, a decision like this would probably have come sooner. We all just had to wait for cases like these to work their way through the system.
Under the Equality Act 2010, a disability is a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day to day activities.” Each case turns on its own specific facts, and there is usually a lot of focus on whether the effect of the impairment is sufficiently substantial and sufficiently long-term. It is, however, easy to see that the symptoms of Long Covid could meet this test.
This decision alone does not mean that Long Covid always amounts to a disability. It is a relatively new condition with a large range of symptoms and variations in severity and duration, so each case will need to be considered on its own facts whether it meets the definition of disability under the Equality Act 2010.
Often, the only information an employer gets from an employee is a GP note. This will not usually tell the employer what the symptoms are, how they affect the employee’s ability to work, how long-term it might be or what will increase the chances of a successful return to work. Employers should communicate effectively with the employee to understand their situation more fully and also consider obtaining an occupational health report to answer these questions.
Charlie Thompson is an employment lawyer and partner at Stewarts.
