In Burke v Turning Point Scotland, the Employment Tribunal had to decide whether a man, who caught Covid-19 and experienced fatigue and other symptoms up until his dismissal eight and a half months later, was disabled for the purposes of the Equality Act 2010.
The facts of the case are these: Mr Burke caught Covid-19 and experienced mild, flu-like symptoms for the first couple of weeks. From November 2020, Mr Burke’s condition worsened and fluctuated and by August 2021, he was dismissed due to ill health. He brought a number of claims, including disability discrimination, and although the charity accepted he had an “impairment” caused by Covid-19, they denied it was “long-term”.
A preliminary hearing was held to determine if Mr Burke was disabled. They concluded he was and he could continue with his claim. The case will now go back to the tribunal to determine the substantial claims.
Lessons for employers in the property sector
Employers in all sectors, including in property, need to carefully manage anyone who has been diagnosed with long Covid or is suspected of having it. We recommend you consider the following:
1. Is the employee disabled? Not everyone who has ongoing Covid-19 symptoms will have a disability. But, it is probably safer to assume that anyone who is still suffering from the effects of Covid-19 months after they were infected may have a disability.
2. Medical evidence/OH reports. Occupational health professionals will help you to ascertain what adjustments can be made and help reduce sickness absence. This case makes it clear that you should not uncritically rely on an OH’s opinion, particularly if they believe the employee is unlikely to be disabled.
3. What reasonable adjustments can you make? If you conclude that your employee is or may be disabled, think about what reasonable adjustments you can make to help them remain in work or return to work.
Treat disability-related absences with care. You are entitled to manage ill health and absence, and a disabled employee cannot expect to be removed entirely from the scope of your absence management policy. Some policies already include provision to offset disadvantage to people with disabilities. If yours does not, consider what adjustments you can make.
Even if adjustments are made, the level of absence may reach the point where you can reasonably dismiss on the grounds of capability. However, you need to obtain up-to-date medical evidence first, discuss this with the employee and warn them they may be dismissed. Take advice if you are not sure.
Joanne Moseley is practice development lawyer in the employment team at Irwin Mitchell
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