Covid and disability status
Most employers will have experienced an employee who suffers badly with a bout of Covid, and which then develops into post-Covid-19 syndrome, or ‘long Covid’.
An employment tribunal has looked at a case where an employee tried to bring a discrimination claim linked to her long-Covid, in relation to a dismissal which took place only a couple of weeks after her initial Covid infection.
In Quinn v Sense Scotland, the employee was Head of People for the employer from December 2019 until her dismissal on 27 July 2021. Two and a half weeks before her dismissal she caught Covid. She experienced a range of symptoms including shortness of breath, headaches, brain fog and fatigue. She struggled with shopping and driving, stopped socialising and couldn’t exercise. These symptoms continued after her employment ended. She continued to be signed off sick throughout August 2021 when her covid symptoms did not improve. She was diagnosed with long Covid (where symptoms persist beyond 12 weeks) but she got another job and was able to do it with adjustments. She brought claims against her employer saying that she was disabled at the time of dismissal because it was predicable that she would contract long Covid as other 50-year-old women with no underlying conditions had recovered more quickly than her.
The employment tribunal described the test required for disability status. At the time of the alleged discriminatory act, the employee must have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to perform normal day to day activities. ‘Long-term’ means the impairment has lasted, or is likely to last, at least 12 months (the employee here was relying on the ‘likely to last’ part of this test). Likely to last in this context means ‘could well happen’. Likelihood is judged at the time of the alleged discrimination – here, the time of dismissal – not with the benefit of hindsight. The employment tribunal said the employee was not disabled at the time she was dismissed. The employee met all parts of the test except the ‘long-term’ part. She did not have long-Covid at the time of dismissal. Someone who gets Covid is at risk of getting long-Covid, and someone who gets long-Covid is at risk of having it for more than a year. There was a risk that the employee would go on to get long-Covid and a risk it might last for more than a year. However, the majority of people don’t get long-Covid and don’t go on to suffer for more than a year. As such, at the time of the employee’s dismissal, there was a risk it might happen, but not a risk that it could well happen. She was not disabled at the time of her dismissal and could not bring a discrimination claim.
This case is not binding on other courts. However, it is a helpful decision for employers. The judgment provides clear guidance for employers about the disability status test, broken down into its constituent parts by the employment tribunal. It refers to another (non-binding) employment tribunal decision called Burke v Turning Point Scotland, where long-Covid was found to be a disability. In Burke, the employee had been off 9 months and there was no foreseeable return date, a very different scenario to the situation in Quinn. Every long-Covid disability case will turn on its own facts and employers must drill down into the detail to ensure they do not trip up.
Adrian Fryer, Partner & Head of Employment
t: 0151 224 0539