Tipping point into disability: Covid vs long-Covid?

As of 3 September 2022, an estimated 2.3 million people in private households in the UK were experiencing self-reported long-Covid.

This figure is set to increase; as temperatures drop, the number of people testing positive for Covid is rising.

We know that long-Covid can amount to a disability, triggering protections under equalities legislation. But what is not as clear is when that happens: when do employees with Covid symptoms become protected employees with a legally qualifying disability?

In this Briefing we explore the answer to this question, examining the recent case of Quinn v Sense Scotland and what it means for employers.

Background

Under equalities legislation, a person will be classed as disabled if they have a physical or mental impairment which has a substantial and long-term (i.e. lasting or likely to last 12 months or more) adverse effect on their ability to carry out normal day-to-day activities. When considering whether a condition is ‘likely’ to last 12 months or more, an Employment Tribunal must consider whether it ‘could well happen’.

It’s clear from previous case law that long-Covid can satisfy this definition, and that a person with long-Covid can be classed as disabled under equalities legislation. This triggers an employer’s duty to make reasonable adjustments, as well as a range of protections from discrimination and less favourable treatment.   

However, claims are often brought in respect of alleged acts that occur before a diagnosis of long Covid is made.  In these situations, it’s hard to know whether the employee is disabled at the relevant time, given that both (disabled) long-Covid sufferers and (non-disabled) Covid sufferers will often start out with very similar symptoms. At what point do employers need to be mindful that equalities protections come into play?

Facts

Ms Quinn was dismissed on 27 July 2021.  Prior to her dismissal she had contracted Covid (testing positive around 11 July 2021). She was still experiencing symptoms at the time of her dismissal.  On 12 September 2021 she was diagnosed with long-Covid.

Ms Quinn brought a direct disability discrimination claim along with other claims, relying on the impairment of long-Covid. She argued that, at the time of her dismissal, it could have been predicted that she might get long-Covid so she was entitled to special protection under equalities legislation.

Findings

Before deciding the main part of her claim, an Employment Tribunal had to decide whether Ms Quinn was disabled under the Equality Act at the time of her dismissal.  It decided she was not.

• It rejected the argument that Covid-19 and long-Covid are essentially the same thing.  At the time of her dismissal, Quinn did not have long-Covid. Long-Covid was not diagnosed until six weeks later.

• At the time of her dismissal, any substantial adverse effects on Ms Quinn’s ability to carry out normal activities had only lasted for two and a half weeks, which was not deemed long term.

• Most people who contract Covid-19 do not develop long Covid, and therefore Ms Quinn’s belief that developing long Covid ‘could well happen’/could be predicted was unfounded.

Comment

Long-Covid is still a very real problem for employers. This case is helpful in providing some clues to when it should be treated as a disability.

If you are dealing with a case where Covid symptoms are ongoing you should consider the following points.

1. How long have the symptoms lasted and how long are they likely to last? The longer the symptoms have lasted, the more likely it is that the ‘long-term’ aspect of the test for disability (i.e. that the symptoms are likely to last 12 months or more) will be satisfied.

2. Is there is a diagnosis of long-Covid? If there is then although that doesn’t formally make the person legally disabled, because of the likely underlying symptoms that will have led to the diagnosis in practice the employee is probably disabled.  The Equality and Human Rights Commission has stated its view that employers should treat employees suffering from long-Covid symptoms as though they are disabled under the Equality Act 2010, although again, this isn’t legally binding.

When considering point 1 it is worth comparing Ms Quinn’s case with that of a previous case involving a Mr Burke, who was able to establish that he was disabled with long-Covid at the time of his dismissal. Like Ms Quinn, Mr Burke had not had Covid symptoms for 12 months at the date of his dismissal (the last alleged discriminatory act). However, he had been absent from work with Covid symptoms (described on medical notes as ‘post viral fatigue syndrome’) for 9 months at the time of his dismissal. An Employment Tribunal was therefore able to conclude that the substantial adverse effect was long term because it "could well" last for a period of 12 months when viewed from the dismissal date. As Ms Quinn had only experienced symptoms for 2.5 weeks at the point of her dismissal, the same could not be said.

Read the Quinn judgment here.

Find Covid-19 facts and figures here.

Contributors: Catherine Roylance and Sarah Maddock

For further news and updates on employment law developments as they happen, please follow our specialist Employment Law Twitter Feed @TLT_Employment and subscribe to our Employment Law Focus podcast – the latest episode, on Trans and non-binary inclusion is available here.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at October 2022. Specific advice should be sought for specific cases. For more information see our terms & conditions.