Employment Law: Long Covid and T Burke v Turning Point Scotland | July 22
Long Covid and T Burke v Turning Point Scotland: 4112457/2021
ACAS state that by law, a disability is a physical or mental impairment that has a 'long-term and substantial adverse effect' on a person's ability to do normal day-to-day activities.
'Long term' means either:
- it will affect them or is likely to affect them for at least a year
- it's likely to last for the rest of their life
In the above case Mr T Burke v Turning Point Scotland Mr Burk was a Caretaker and took a case on age and disability to an Employment Tribunal. In this case he presented a claim to the Employment Tribunal complaining that he has been unfairly dismissed, discriminated against because of the protected characteristics of disability and age and that there was failure to pay him a redundancy payment. This was based on the fact that he was suffering long Covid and post-viral fatigue syndrome and as such was a disability under the act.
In considering this the Employment Tribunal accepted that those suffering from long-COVID will have good days and bad days, which explained Mr Burke feeling able to return to work and then later feeling unable to do so after his symptoms returned. Mr Burks sick pay had ceased, so there was no financial benefit to him in remaining off work and his 20 year’s unblemished service did not suggest he was likely to over-exaggerate illness. Therefore, in this specific case the Employment Tribunal were satisfied the relevant tests to meet the point in his claim around the definition of a disability under the Equality Act 2010 had been met. However, it is important to note that the Employment Tribunal only considered whether or not the claimant had a disability as a preliminary issue and the main hearing about the merits of the claim is still to take place.
The above does not mean that every claim under the act relating to long-Covid would be successful as the specifics in this case are quite unique and it still has to run its full course however this will not be the first of long-Covid cases that employers will have to deal with in coming months and years so caution will be the way forward when addressing such issues.
The full judgment can be found at the following:
NB: The above information is for general guidance only and is not legal advice. It should not be regarded or relied upon as a complete or authoritative statement of the law. However, if you have any HR issues on this or any other HR matters and would like to talk them through with our team, please contact us.
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