Is long Covid a disability?

As more covid related cases are coming through the tribunal system, this update looks at a case that considers if long Covid is a disability.

In my update from 18^th July (bit.ly/3tGtYNO) I reported on a case Burke v Turning Point. In this case the judge considered that the claimant, as a result of long Covid symptoms, had a disability.

In a more recent case from September 2022 another long Covid case was considered by a Tribunal in Scotland.

In Quinn v Sense Scotland, Mrs Quinn was employed as Head of People between December 2019 until her dismissal in July 2021. Mrs Quinn tested positive for Covid in July 2021. She experienced fatigue, shortness of breath, general aches and pains, headaches and brain fog. She was affected in many aspects of her everyday life and her sleep was disrupted.

Mrs Quinn struggled with daily activities including shopping and driving, and she stopped exercising and socialising. Mrs Quinn was dismissed on 27 July 2021 and there is no detail given in the judgment of the reason given by Sense Scotland for her dismissal.

In August 2021, Mrs Quinn was advised by her GP that she might have Post-Covid-19 Syndrome (long Covid) and she was diagnosed with long Covid in September 2021.

Mrs Quinn brought a direct disability discrimination claim, amongst other claims against her previous employer. As a preliminary issue, the Tribunal had to reach a decision on whether Mrs Quinn was disabled under the Act, at the time of her dismissal.

Applying the definition of disability
To be a disability, the effect of Mrs Quinn’s Covid would have needed to have been likely to last or recur for at least 12 months. The Tribunal noted that Mrs Quinn was not diagnosed with long Covid until around six weeks after her dismissal.

At the time of her dismissal, long-Covid had not even been mentioned as a possibility. The Tribunal accepted Mrs Quinn's ability to carry out normal day-to-day activities was substantially impacted by Covid. However, the effect had lasted only two and a half weeks at the time of her dismissal, so it could not be said to be "long term" for the purpose of the statutory definition.

Takeaways from this case
The judgment does not set any precedents for other claimants with long Covid symptoms, each case will be considered on its merits. It does provide a useful example of how the statutory definition of 'disability' can be applied to somebody whose Covid turns into long-Covid over time. In particular, where a person's ability to carry out normal day-to-day activities is impacted, whilst the impact might well be significant, it needs to have been a truly 'long-term effect' in order for the statutory definition to be met.

If you have any questions about this update, please get in touch.

Have a good week!

Jo