In a landmark tribunal case, a charity caretaker has become one of the first people to successfully claim their symptoms of long Covid amount to a disability after he brought a tribunal claim of unfair dismissal against his Employer. This is the first of what could become many rulings on the issue, so it is important as an Employer, you understand the facts.
By definition, a disability is a physical or mental impairment that has a ‘long-term and substantial adverse effect’ on a person’s ability to do normal day-to day activities.
‘Long term’ is defined as affecting the person or likely to for at least a year or is likely to last for the rest of their life.
‘Substantial adverse effect’ means more than just a minor impact on someone’s life or how they can do certain things.
In this case, there has not yet been a judgement passed on whether the dismissal was unfair, however Judge J.D Young found the caretaker’s condition had a ‘long term substantial adverse effect’ meaning it was likely for a period of 12 months and that his impairment did have ‘an adverse effect on day- to- day activities’. He considered the relevant tests met the definition of disability. The caretaker described his symptoms as ‘flu like’ over his isolation period. However, after this he developed severe headaches and fatigue. He told the tribunal that after ‘waking, showering and dressing’ he would need to lie down to rest from exhaustion and that he struggled standing for long periods.
It is important to note that this tribunal decision is not binding on other courts and not all cases of long Covid will be considered a disability. Long covid is still a new illness and will take time to fully understand. As an employer it is important to look at reasonable adjustments if an employee is struggling with this.
There are other types of discrimination that employers must also be careful to avoid when considering long Covid. It has been found to more severely affect;
-older people
-ethic minorities
-women
Therefore age, disability, race, or sex discrimination are all areas to consider very carefully and ensure you are not putting your business at risk of a discrimination claim. I would strongly urge any Employer managing a long covid absence to speak with their internal HR department or speak to an expert.
If you would like to discuss an absence issue or like to learn more about how we can help you, get in contact with our team of experts today.
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