This was a preliminary hearing on whether the claimant had a disability in line with the definition within the Equality Act 2010.   The claimant claimed to suffer from ‘long Covid’.  He stated that he had symptoms including extreme fatigue, joint pain, sleeplessness and a lack of energy.  The claimant tested positive for Coronavirus in November 2020 and was off work until his dismissal in August 2021.   The claimant had been in contact with his GP (through telephone as in person consultations were restricted) who continued to provide medical certificates stating that the claimant was unfit for work.  

In April 2021 the claimant was referred to occupational health and he attended a telephone assessment.   The advisor at this point noted that the claimant’s fatigue had reduced and that the claimant was keen to return to work.   However, that being said the claimant suffered an exacerbation of the symptoms noted above and was unable to return to work.  Another occupational health assessment was carried out in June where OH advised that the tiredness was ‘normal’ and not of significant medical concern. At this point, the claimant’s sick pay ceased and he was advised that there was restructuring within the respondent’s workforce.   The claimant did outline his concern about the restructuring process after the first consultation.  However, before the second consultation could take place the dismissal proceedings had already been commenced against the claimant.    He was dismissed in August 2021 with the letter of dismissal stating that the claimant remained too ill to return to work and that the employer could not do anything further to make the return more likely.  

The claimant claimed for unfair dismissal and discrimination on the basis of disability and age.   The respondent accepted that there was a physical impairment from November 2020 to June 2021 but that it had ceased at that point.   The Tribunal found that there was a physical impairment suffered accepting the evidence of the claimant and his daughter.  They did outline that in-person consultations may not be the best way but that there was no contrary evidence to suggest that the claimant was not suffering from long Covid.  Additionally, it was found that there was no financial benefit in staying off work from June onwards considering that the sick pay had stopped.  Therefore, it was found that the impairment had continued until the date of dismissal.  The Tribunal went through the requirements for a disability under the legislation and outlined that the impairment did have an adverse effect on the claimant’s ability to carry out normal day-to-day activities, it was substantial and it had a long-term effect.  On the latter point, it was held that the impairment was likely to last for at least 12 months using the statement from SCA Packaging v Boyle that it ‘could well happen’ that the condition would continue to November 2021.  Therefore, it was found that the claimant was a disabled person through the relevant period.  This allowed the case to continue to full hearing on the issues. 

Practical Lessons

This case provides an interesting insight into how the Tribunal will deal with issues relating to long Covid.  It is a matter of applying the requirements within the legislation to the effects that are being faced by the claimant.   In this situation, the evidence was such that the claimant continued to suffer fatigue following testing positive for Coronavirus in November.  As a result, it fell into the requirements of having a substantial effect in the long-term and affecting the normal day-to-day activities.  Employers should be cognisant of this where they have employees who are citing long Covid and the extent to which reasonable adjustments could be made.