The claimant was employed by the respondent as ‘Head of People’ in December 2019. As a result of the Coronavirus Pandemic, the claimant worked from homed since March 2020. In July 2021, the claimant tested positive for COVID-19.  She experienced symptoms such as brain god, discomfort, fatigue and shortness of breath. The claimant was dismissed from her employment on 27th July 2021 and it should be noted that her symptoms continued after her dismissal.  In September 2021 the claimant was diagnosed with Long COVID.

The issue for the Tribunal was whether the claimant was disabled within the definition set out in the Equality Act 2010 (Disability Discrimination Act 1995 in Northern Ireland). The claimant’s submission was that her original COVID positive test and the Long COVID should be treated as the same condition. She also stated that it had a substantial adverse effect on her day-to-day activities and that it could be inferred she was going to develop Long COVID when she received the positive test and it had not cleared within the ‘normal’ times.

The Tribunal examined this through the particular aspects of the definition of disability within the statute. The relevant time was the date of dismissal.  At that point, the Tribunal found that the claimant had impairment through a COVID-19 diagnosis. It was found that this did have an adverse effect on her normal day-to-day activities such as shopping and socialising and that it was more than minor or trivial. The main issue, though, was whether it was going to be likely to last or recur for one year. The Tribunal acknowledged that it had been 2.5 weeks by the time of dismissal and the claimant had not recovered from COVID. However, at that point she did not have or was not diagnosed as having Long COVID. It was 6 weeks after dismissal that the claimant was diagnosed with having Long COVID. The Tribunal acknowledged that an individual with Long COVID was at risk of suffering it more than a year. Indeed, an individual with COVID could subsequently develop Long COVID. However, the amount of people who develop COVID and don’t go on to develop Long COVID is the substantial majority. As a result, it could not be such that at the time of dismissal that it was likely the effects would be longer than one year. As a result, the claimant was not regarded as being disabled for the purposes of her claim.

Practical Lesson

This case demonstrates the importance of ‘relevant time’ and ‘likely to last 12 months’ when it comes to the definition of disabled.  The link is clear in this case between the initial positive COVID test prior to dismissal and the diagnosis of Long COVID post-dismissal. However, the relevant time is dismissal and whether it is likely that the claimant would suffer the effects for more than 12 months.  Considering that the vast majority of those who contract COVID do not go on to get Long COVID it was such that the definition of disability could not be examined with hindsight in mind.
https://assets.publishing.service.gov.uk/media/631600ad8fa8f5423fb0c7d0/Mrs_G_Quinn_v_Sense_Scotland_-_4111971.2021_-_Preliminary.pdf