A landmark Employment Tribunal ruling has given a charity caretaker, Terence Burke, permission to bring a case of disability discrimination against his former employer for long COVID.

The first public case of its kind concluded that COVID-19 had rendered Burke with ‘substantial and long-term’ side effects which left him unable to complete simple household chores and go to work. Following the conclusion of a preliminary case to determine if he was legally disabled, Burke’s case against charity Turning Point Scotland can now proceed to a full hearing. This follows the Equalities and Human Rights Commission (EHRC) decision in May 2022 that the condition should not be treated as a disability.

The Tribunal heard how Burke had worked as a caretaker for the charity since April 2001, but after contracting COVID-19 in November 2020 became absent from work for nine months until he was sacked. His symptoms were ‘very mild at first’ and ‘flu like’ but then he developed severe headaches and fatigue. He would need to lie down after getting dressed in the morning to rest from ‘fatigue and exhaustion’ and he struggled to stand for long periods.

The Tribunal – held remotely in Scotland – heard he was also experiencing joint pain in his arms, legs and shoulders together with a loss of appetite and lack of concentration.

His daughter Tressa Burke, CEO of Glasgow Disability Alliance, told the Tribunal her father was ‘fatigued for months’, had no appetite and lost weight. She said he was unable to cook or shop anymore and recalled a conversation where he had said he was hoping to return to work in April 2021 but was then ‘zonked’ and ‘exhausted for days after’.

Following several phone consultations with his GP, Burke was diagnosed with ‘post-viral fatigue syndrome’. In August 2021, Burke was sacked on ill health grounds after he had not been to work for nine months with sick notes being extended by his doctor throughout that period.

His dismissal letter read:

“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.”

The panel ruled that Burke’s long COVID amounted to a disability under the Equality Act, with employment judge James Young agreeing his condition gave him a ‘substantial and long-term adverse effect’ on his ability to carry out normal day-to-day activities.

The judge ruled:

“Fatigue affected him badly until around January 2022 and that could ‘floor him’, sleep remained disturbed and there could be flare up of joint pain. He gave a similar account in August 2021 of symptoms and described requiring to sit and rest ‘and/or go to sleep’ and his legs and body aching on a short walk. That affected his ability to continue with household chores, shop, and his concentration to an extent more than minor or trivial. I consider that the relevant tests are met to meet the definition of disability.”

Burke will now bring his claims of unfair dismissal, disability discrimination, age discrimination and failure to pay redundancy payments to a final Tribunal hearing.

A statement on EHRC's website about whether long COVID should be treated as a disability currently reads:

“There continues to be discussion of the various symptoms related to COVID-19 that are often referred to as ‘long COVID’ and whether they would constitute a disability under the Equality Act.

“Given that ‘long COVID’ is not among the conditions listed in the Equality Act as ones which are automatically a disability, such as cancer, HIV and multiple sclerosis, we cannot say that all cases of ‘long COVID’ will fall under the definition of disability in the Equality Act. This does not affect whether ‘long COVID’ might amount to a disability for any particular individual – it will do so if it has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This will be determined by the Employment Tribunal or court considering any claim of disability discrimination.

“To support workers affected by ‘long COVID’ and avoid the risk of inadvertent discrimination, we would recommend that employers continue to follow existing guidance when considering reasonable adjustments for disabled people and access to flexible working, based on the circumstances of individual cases.”

Reasonable adjustments apply to all workers, including trainees, apprentices, contract workers and business partners. It is the employer’s duty to ensure that any workers with physical or mental disabilities are able to carry out their work without disadvantage.

One of the most common types of disability discrimination occurs when an employer fails to make reasonable adjustments for a job applicant or worker with disabilities, in which case the worker or job applicant can make a claim of disability discrimination to an employment tribunal.