In the latest case exploring employment issues which arose during the pandemic, an Employment Tribunal in Scotland was asked to apply the Equality Act test to long-covid.
In his latest article, Employment Solicitor Chris Dobbs looks at what the tribunal ruled and gives some key takeaways for employers.
What is a disability under the Equality Act?
In order to amount to a disability for the purposes of the Equality Act, the Claimant must show that their condition:
- Is a mental or physical impairment
- Which has lasted or is likely to last at least 12 months at the date of the alleged incident, and
- Which has a substantial impact on their ability to carry out normally day to day activities
How do the courts usually approach these cases?
A cohesive approach is often taken to these criteria, as the points often inevitably overlap.
There is no requirement for the condition to be one which is clinically diagnosed or even named but that does assist.
Any treatment or aids already in place to mitigate symptoms are ignored for the purposes of this test.
Case background: Who was the claimant?
The Claimant, Gillian Quinn, was dismissed by Sense Scotland in July 2021 following a sustained period of illness due to contracting covid-19.
Six weeks after her dismissal she was diagnosed with long-covid.
Her symptoms between her diagnosis with covid in July and until her later diagnosis with long-covid included shortness of breath, fatigue, muscle aches and discomfort as well brain fog and headaches.
What did the tribunal rule?
The Tribunal in Scotland concluded that Ms Quinn was not disabled at the relevant time.
In reaching this decision, the judge took into account not only a lack of medical evidence produced by the Claimant but, more importantly, the relatively short period of time during which she had experienced the condition before her dismissal.
The importance of time periods in disability cases
The Tribunal found that she had suffered the adverse effect for a little over two weeks and that she had not been diagnosed with long-covid at the time of her dismissal.
The Tribunal particularly noted that existing case law says that when assessing whether a condition is likely to last 12 months, the test is whether “it could well happen”.
This was at odds with the relatively low number of people who have developed long-covid compared to those who have had covid.
What does this ruling mean for employers?
Employment Solicitor Chris Dobbs said: "The Tribunal did not say that long-covid is not a disability. Prior cases have shown that it is possible for long-covid to meet the test (notably Burke v Turning point Scotland) but that each case must be decided on its own merits.
For a successful disability discrimination claim, the Claimant must show both that they had a disability and that they were disabled at the relevant time (i.e. when the alleged discriminatory event took place).
When facing a possible disability claim, this is one of the first things that employers should consider as the onus is on the Claimant to prove these points."
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