It has already been established that people suffering from long Covid can be classified as disabled for the purposes of section 6 of the Equality Act 2010 (the Act). For example, in a case from 2021*, a man was held to be disabled for the purposes of the Act, having been absent from work with Covid-19 for nine months at the time of his dismissal. 

However, in a recent case**, an employee who caught Covid-19 was dismissed two and a half weeks later and went on to develop long Covid in the subsequent months. She brought a claim for direct discrimination, saying that she had been disabled under the Equality Act at the time of her dismissal.

However, the employment tribunal said that, at the time of her dismissal, she was not disabled for the purposes of the Act.   

To help understand this decision, it’s worth noting what constitutes a disability under the Act. For the purposes of the Act, a disability is a physical or mental impairment that has a 'long-term and substantial adverse effect' on a person’s day-to-day activities. 'Long-term' means:

• 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

So, the key question for the employment tribunal was not whether the employee ultimately developed long Covid. It was whether, at the point of her dismissal, her Covid-19 symptoms were likely to affect her for at least a year.

The employee argued that Covid and long Covid are part of the same condition, and therefore, at the time of her dismissal, it was likely that her symptoms would go on long enough to meet the threshold under the Act.

However, even though much is still to be learned about Covid-19, statistics suggest that only a small number of those suffering from Covid-19 will go on to develop long Covid. Therefore, just because the employee had Covid-19 at the time of her dismissal, it does not stand to reason that she was likely to be affected for at least a year, and therefore she would not have been considered disabled under the Act at the time of her dismissal.

This can be distinguished from the earlier mentioned case of the man that had been poorly for nine months. In that case, there was a greater chance that the symptoms would last at least a year and so he met the threshold under the Act.

If you have any questions or concerns about an employee that is away from work with Covid-19, please contact Jackie Morris or Carl Latham, or give us a call on 0121 214 3703.

*Burke v Turning Point Scotland ETS/4112457/2021

** Quinn v Sense Scotland ETS/4111971/2021