In the case of Mr T Burke v Turning Point Scotland, a Scottish Employment Tribunal - heard by Employment Judge J D Young - ruled that an individual suffering from long Covid was disabled for the purposes of the Equality Act 2010 and could bring a disability discrimination claim against his former employer. This makes Mr Burke one of the first people to successfully claim that their symptoms of long Covid amounted to a disability.

Mr Burke was employed as a caretaker for Turning Point Scotland from April 2001 to August 2021. In November 2020, both Mr Burke and his wife contracted Covid-19 resulting in him being unable to work for nine months as he suffered substantial and long-term side effects.

Despite his initial Covid symptoms being very mild and flu-like, after the isolation period he developed severe headaches and symptoms of fatigue. His symptoms included needing to lie down and rest as he was exhausted after showering and dressing; being unable to perform household chores; having joint pain in his legs, arms and shoulders and having a disturbed sleep pattern.

Mr Burke had several telephone consultations with his GP and was diagnosed with post-viral symptom. Between the nine months he was off sick and when he was dismissed, he also had a telephone consultation with occupational health, who reported that Mr Burke was medically fit to return to work. The report also stated that it was unlikely that the Equality Act would apply in his circumstances.

Mr Burke’s payment of sick pay from his employer ceased around June 2021, when there was a follow-up consultation - and he was dismissed on 13 August 2021 on grounds of ill-health. His dismissal letter stated:

“…having reviewed the capability report including occupational health opinion closely, and taken the details of our discussion into consideration, it is my view that you remain too ill to return to work and there appears to be nothing further we can do to adjust your duties or work environment that would make your return more likely. In addition, there does not appear to be a potential date on which there is a likelihood of you being able to return to full duties in the future.”

The tribunal was told that, as a charitable organisation, his employers were not able to hold the post open and so given the uncertainty around a potential return to work date, Mr Burke was dismissed on the grounds of ill health.

Judge Young ruled that Mr Burke’s condition had a long-term substantial adverse effect, meaning that it was likely to last for a period of 12 months and that his impairment had an adverse effect on his day-to-day activities.

He said:

“I consider that the relevant tests are met to meet the definition of disability, and that Mr Burke was a disabled person in the period of the alleged discriminatory acts.”

The case will now go to a hearing in respect of the claims of discrimination arising because of disability.

James Potts - Legal Services Director at Peninsula - commented on the case, saying that the judgment was the first of what could be many rulings on the issue.

He said:

“The expectation is that more cases will make their way through the tribunal system, and so employers are advised to treat each one individually and be prepared to consider reasonable adjustment, even where medical evidence is inconclusive on the disability question.”

He added that this decision was not binding on other courts and if this decision is challenged a higher may reach a different conclusion - saying:

“Each case will turn on its own facts.”

This was echoed by Catherine Turner - Employment Partner at law firm Bryan Cave Leighton Paisner - who said that the ruling should make employers think about how they deal with long Covid cases.

She stated:

“Medical evidence is key in disability claims and the onus is on the individual bringing the claim to prove disability. While the rules are not different for long Covid, what is apparent is that there was not as much medical evidence in this case to support the ex-employee’s case as one would have expected. While credibility of the claimant was - and is always - key, the fact that there were severe restrictions with GPs holding face to face meetings for part of the relevant period played a part in the tribunal’s decision to accept the minimal medical evidence that was presented.”

Ms Turner went on to say that the case is not a blanket ruling for all long Covid disputes, adding:

"The decision does not mean that all those with long Covid will be disabled for employment law purposes. Each case will continue to be decided on its own facts and the legal test and the questions that the tribunal needs to answer remain the same. This is a tribunal decision only which means that it does not need to be followed by tribunals in later cases."