Is long covid classified as a disability: Employment Tribunal rules under the Equality Act 2010

Employment lawyer, David Dixey, discusses a recent ruling in the case of Burke v Turning Point Scotland regarding whether an employee suffering the symptoms of long covid can be classified as disabled.

Is long covid a disablity?

In a recent decision in the case of Burke v Turning Point Scotland, an Employment Tribunal has determined that an employee with long covid symptoms was disabled within the meaning of the Equality Act 2010.

The ruling is fact sensitive and is also not legally binding, being a “first instance” judgment. However, the decision will no doubt be welcomed by those suffering with complications following a covid infection; although there is no official definition of long covid, the Tribunal accepted that Mr Burke was suffering from post-viral fatigue syndrome. It was also noted that his symptoms were consistent with those described in a June 2021 TUC report on long covid.

Long covid as a disability and the Equality Act

On the facts of Mr Burke’s case the Tribunal was satisfied that his condition met the criteria and legal test for the existence of a disability as defined under the Equality Act. The Tribunal concluded:

1. Mr Burke did have a physical impairment;
2. The impairment had an adverse effect on Mr Burke’s ability to carry out normal day to day activities;
3. The effect of his condition was substantial;
4. The adverse effect upon Mr Burke was long term (i.e. likely to last for a period of 12 months).

The above ruling was made at a Preliminary Hearing, meaning Mr Burke will still need a full Hearing before the Tribunal to determine if he actually suffered disability discrimination in relation to his long covid symptoms.