Under the Equality Act 2010, a person has a disability if:
(a) they have a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on the person's ability to carry out normal day-to-day activities.
Burke v Turning Point Scotland: employee's long Covid was a disability
In this case, Mr Burke's long Covid was found to be a qualifying disability. He had worked with his employer for 20 years and had first contracted COVID-19 in November 2020, when he only experienced mild symptoms.
However, Mr Burke's symptoms worsened, and he soon began suffering severe headaches and fatigue, which left him unable to complete household chores and damaged his concentration and sleep pattern.
Whilst his symptoms would sometimes improve, they would always return.
Occupational health advisers twice suggested to the employer that Mr Burke was unlikely to be disabled under the Equality Act and recommended a phased return to work. Mr Burke was unable to return to work and was dismissed in August 2021 on the grounds of ill health due to an ongoing 9-month absence from work.
Whilst the merits of Mr Burke's unfair dismissal and discrimination claims are still to be decided, this decision is the first of its kind and helps to flesh out our understanding of when long Covid might qualify as a disability. It is also a cautionary tale for HR practitioners against an over-reliance on occupational health advice.