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Burke v Turning Point Scotland [2021]

In the Scottish case of Burke v Turning Point Scotland [2021], an employment tribunal ruled that an employee with long covid symptoms was ‘disabled’ within the meaning of section 6 of the Equality Act 2010 (EqA 2010).

Mr Burke was employed by charity, Turning Point, as a caretaker from April 2001. In November 2020, he tested positive for Covid-19. Initially, his symptoms were similar to flu. However, after self-isolating, he developed severe headaches and fatigue. Upon waking, showering, and dressing, he had to lie down to recover and struggled to stand for long periods of time. He also could not undertake household activities like cooking, ironing, and shopping plus experienced joint pain, a loss of appetite, a reduced ability to concentrate and difficulties sleeping. The symptoms were unpredictable, he would experience some improvement but only to suffer from fatigue and exhaustion subsequently. Mr Burke could not socialise or attend his uncle’s funeral in December 2020, the latter being an important event to him.

From January 2022, Mr Burke’s health began to improve. However, sleep disruption and fatigue continued to affect his day-to-day activities, so he remained off work from November 2020 onwards. Fit notes from his GP referred to the effects of long covid and post-viral fatigue syndrome. Yet, two Occupational Health reports stated that he was fit to return to work and the disability provisions of the EqA 2010 were unlikely to apply. However, relapses of his symptoms (mainly, fatigue) meant that he did not return to work. He was dismissed in August 2021 because of ill-health capability and brought disability discrimination claims, amongst other claims.

As a preliminary issue, an employment tribunal decided whether Mr Burke was disabled during the relevant period and it concluded that he was. It considered that he was not exaggerating his symptoms and had a physical impairment (post-viral fatigue syndrome caused by Covid-19), noting that there was no benefit to him to remain off work when he had exhausted sick pay provisions. The lack of detail within initial fit notes could be explained by the restrictions on in-person consultations at the time during the pandemic. The physical impairment therefore had an adverse effect on Mr Burke’s ability to carry out normal day-to-day activities. This effect was more than minor or trivial and long term because it "could well" be that it would last for a period of 12 months when viewed from the dismissal date (the last alleged discriminatory act). The tribunal noted that the employer's own view was that there was no date when a return to work seemed likely.

A further hearing will deal with whether the dismissal was unfair and whether Mr Burke’s employer subjected him to discrimination arising in consequence of disability, indirect discrimination and a failure to make reasonable adjustments.

In light of this decision, employers should carefully consider each employee’s symptoms on its own facts, especially when dealing with the relatively new concept of long covid which can involve complex symptoms. This will ensure that any reasonable adjustments can be made and the employee is supported in the workplace. Otherwise, employers could fall foul of the EqA 2010 and disability discrimination legislation.

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