Is Long Covid a disability?

7 December 2022

Potentially – and obviously –  yes. Provided that the claimant can satisfy the tribunal that his/her condition satisfies the statutory test set out in EqA 2010, s.6, there is no reason why Long Covid should not amount to a disability.

That was the conclusion drawn by the tribunal in Burke v Turning Point Scotland (4112457/2021), in which the claimant was dismissed following a period of absence from work lasting several months, caused in particular by fatigue described by his doctor as attributable to “after effects of long Covid and post viral fatigue syndrome”.

One of the notable features of the claimant’s condition was that its symptoms were unpredictable and fluctuating. The effects of the virus had “peaks and troughs”. Sometimes the claimant felt well. On other occasions he was prone to falling asleep in the middle of the day.

However, the statutory definition of disability includes conditions which cease having a substantial adverse effect if the effect is likely to recur. See EqA 2010, Schedule 1 para 2(2). On that basis, the tribunal was able to conclude that the claimant’s condition was long term, on the basis that such recurrences of fatigue “could well happen”, thus meeting the relatively low threshold established by SCA Packaging Ltd v Boyle [2009] ICR 1056, HL.

The case is also a reminder that the relevant period to consider is the time of the alleged discrimination. See McDougall v Richmond Adult Community College [2008] ICR 431, CA.

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