Discrimination in the workplace can originate from various prejudices leading to unfavourable treatment based on someone’s gender, sexuality, race, religion, pregnancy, maternity or disability. Recently, there has been a case whereby an employee with long-COVID deemed disabled under the Equality Act 2010 brought a discrimination claim against his employer.

Since 2020, many aspects of the law have had no choice but to adjust or transform to house the new world that the pandemic has created.

What is long-COVID?

Long-COVID has affected many people who contracted the illness since its global outbreak in March 2020. There is a lot of speculation surrounding long-COVID, its symptoms, effects and victims.

Public Health England estimates that:

  • 3% of people experience long-COVID one month or longer after infection
  • 5% of people experience long-COVID three months or longer after infection and
  • more than 30% of people hospitalised with the illness experience long-COVID.

Burke v Turning Point Scotland

In the case of Mr Burke, who was employed as a caretaker at Turning Point Scotland for around 20 years, he did not return to work after contracting COVID-19 in November 2020 due to the severity of his short and long-term symptoms. His symptoms included:

  • Headaches
  • Fatigue
  • Loss of appetite
  • Joint pain
  • Difficulty sleeping
  • Exhaustion

Many of these symptoms meant that Mr Burke could not stand for long periods of time.

In April 2021 and June 2021, Turning Point Scotland obtained two occupational health reports that concluded it was “unlikely” that the disability provisions outlined in the Equality Act 2010 would apply to Mr Burke. Shortly after this, in August 2021, Mr Burke was dismissed by Turning Point Scotland on the ground of ill health.

In his letter of dismissal, it was stated that due to the uncertainty of a date when Mr Burke would be able to return to work, it was with regret that he was dismissed.

Mr Burke later claimed disability discrimination.

Disability Discrimination Claims

In the employment tribunal, it was found that Mr Burke had a physical impairment that affected his ability to carry out normal day to day activities. This impairment was found to be more than minor and likely to last longer than 12 months.

The ruling found that Mr Burke was experiencing symptoms that met the relevant tests of the definition of disability, according to the Equality Act 2010.

Employment Tribunal for Discrimination

Although not all disability means that an employee cannot be dismissed for capability reasons, an employer should always ensure that their decision surrounding a dismissal does not discriminate against the employee in question.

It is highly likely that following Burke v Turning Point Scotland, there will be an increase in discrimination claims from employees suffering from long-COVID.

Moreover, ACAS has issued sickness and absence advice for employers and employees dealing with ‘long-COVID’.

Employers should always be cautious when managing suspected cases of long-COVID or any disability in the workplace.

Solicitor for Employment Tribunal

At Beverley Morris & Co., we provide specialist guidance surrounding workplace discrimination issues, as discussed in this article.

We have extensive experience helping employers comply with their obligations under the Equality Act. Our employment and dispute resolution teams also help bring or defend any Equality Act complaints brought by employees.

To speak to a team member today, please call 020 8852 4433, email enquiries@beverleymorris.co.uk or fill in a contact form, and we will get back to you.