Court confirms long Covid symptoms could amount to disability – Health and Safety

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A recent court ruling reiterates that employers dealing with an employee on sick leave with ‘long Covid’ must carefully consider whether the individual may be disabled within the meaning of the legal definition, bearing in mind the evidence that it is common for symptoms to fluctuate and for some individuals to continue to suffer for 12 months.

In deciding that the applicant’s “long Covid” was a handicap in Burke versus Turning Point, the court took note of the TUC report of June 2021 stating that the most common symptom is fatigue (with lack of concentration, joint pain, headache and muscle pain also noted), which for many people , the symptoms vary over time, and that for about a third the symptoms can last 12 months. The court rejected suggestions that the claimant was exaggerating his symptoms, noting that this was unlikely given that entitlement to sick pay had already been exhausted so there was no financial incentive not to work .

Each case will depend on their own facts, but an individual may very well be able to meet the legal definition by demonstrating a significant adverse effect on daily activities likely to last for at least 12 months, even though there may have been a short periods when the symptoms temporarily disappear (and even if occupational medicine happens to have assessed the individual as fit for work during one of these periods, as in burk). If so, the employer may have an obligation to make reasonable adjustments, such as providing flexibility to facilitate a return to work (for example, remote work, part-time hours, or a phased return) or adjust absence management policies, while premature dismissal may put the employer at risk of disability discrimination claims.

This latter risk is demonstrated by the EAT judgment in
Department of Works and Pensions v Boyers. The claimant suffered from severe migraines and mental health issues which she claimed were exacerbated by the bullying of a co-worker and was therefore unable to work on her original team; she was on sick leave for an extended period except for a short trial in a different role and location. The employer deemed the trial unsuccessful without proper assessment and despite his failure to provide him with reasonable support in his new role. In these circumstances, it was discriminatory to dismiss her for long-term absence, since a properly argued and assessed trial could have meant that she was able to continue working.

Employers considering dismissal for a long-term absence should first consider whether there are less factually discriminatory alternatives such as a return to another role and, if so, ensure that the applicant is given a reasonable trial in the new role with appropriate support.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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