Employment Tribunal finds employee's symptoms of long Covid constituted a disability

Employment Tribunal finds that employee’s symptoms of long Covid constituted a disability despite his ability to be able to run substantial distances, attend the gym regularly and establish a separate side business

At a preliminary hearing, the employment tribunal (ET) has ruled that the Claimant, Mr Bradley’s condition of long Covid, which resulted in impairments such as pain, lethargy, brain fog, anxiety and depression was a disability pursuant to the Equality Act 2010. This was despite Mr Bradley being able to run long distances, attend the gym regularly and start a separate successful business.

Mr Bradley had become unwell having caught Covid-19 in early November 2020 and by December 2020 he continued to experience the symptoms outlined above. He described his mental state as being in a brain fog and experiencing feelings of stress and depression.  The symptoms were at their worst between November 2020 and mid-2021, where he suffered from brain fog that made it hard for him to focus or function in a work capacity. His usual exercise regime was also non-existent compared to before.

Mr Bradley was therefore signed off work due to ill-health. He continued to suffer from lethargy, fatigue and needed to lie down during the day for 1 to 3 hours. He was also undergoing therapy and was prescribed anti-depressants. A GP report stated that he had “post Covid Syndrome”, which was compounded by anxiety and depression. His ability to function in a high-pressured job was therefore significantly impacted.

However, by the end of 2021, Mr Bradley had set up his own successful business notwithstanding that from January to July 2021, he was unable to sit at a computer screen, carry out work, prioritise, structure sentences or word find, so he needed to rest and recharge during the day.

The ET therefore held that, on balance, Mr Bradley had struggled at work until he was signed off and was prescribed anti-depressants and counselling. He was no longer able to work full-time due to needing breaks/sleep throughout the day. His impairment was also likely to last at least 12 months. It was also noted that had the claim only related to a reduction in sporting ability i.e. he could only run 5 Km in 26 minutes now (compared to previously 20) and his gym attendance was halved to 3 days per week, he would not have been found to be disabled but was deemed disabled due to the impairments caused by his condition.

This case demonstrates that ETs will consider what impact the impairment has on the individual’s ability to carry out normal day to day activities. Reasonable adjustments will remain important too and will be considered on a case-by-case basis although advice from experts and occupation health is still limited as data relating to long Covid is still at an early stage.

This case will now proceed to a full liability hearing along with an unfair dismissal claim. Readers should also note that as this is a first instance decision, it is not binding although it is interesting to see how the ET approached the issues.

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