The Employment Tribunal (ET) has held that an employee who had COVID 19 at the time of dismissal was not disabled within the meaning of the Equality Act (EA) 2010. This contrasts to prior ET decisions which had found that employees suffering with long COVID were disabled and thus protected under the Act. Mrs Quinn had been employed by Sense Scotland as their Head of People. On 11 July 2021, she tested positive for COVID 19 and subsequently suffered from fatigue, shortness of breath, pain, headaches, and confusion. These symptoms impacted the quality of her sleep and her ability to carry out work. On 27 July 2021, she was dismissed by Sense. On three separate occasions in August 2021, she consulted her GP, and it was during this time that she was diagnosed with long COVID and deemed unfit to work. Mrs Quinn then brought a claim against Sense alleging direct disability discrimination.  

Under the EA 2010, a person is deemed to be disabled if:

  1. The person has a physical or mental impairment, and
  2. That impairment has a substantial and long-term adverse effect on ability to carry out normal day to day activities
It was not disputed that Mrs Quinn satisfied the first limb of this test as she did have a physical impairment at the time of her dismissal. However, in relation to the second limb, although there was clear evidence that her symptoms had had a substantial effect on her ability to carry out day to day activities, the issue was whether it was long-term. Under the EA 2010, an impairment is long-term if at the relevant time it has lasted for at least 12 months or is likely to last for at least 12 months. Crucially, at the time of her dismissal, the effect of COVID had only lasted two and a half weeks. The ET further noted that Mrs Quinn had not been diagnosed with long COVID until six weeks after her dismissal. While the ET acknowledged that someone who contracts COVID is in theory at risk of this developing into long-term illness, it stated that `the substantial majority of people who contract COVID do not go on to develop long COVID and do not suffer from it for more than a year`. Owing to these reasons, Mrs Quinn failed to satisfy the long-term element and thus was not disabled at the time of her dismissal. This decision demonstrates that the timing of contracting COVID 19 is fundamental for determining whether an employee will be deemed disabled. This is what distinguishes the outcome of this case from previous cases where employees with long COVID were found to be disabled. However, while not every employee who has long COVID will be considered disabled, employers should nevertheless be mindful of employees who have been diagnosed or are displaying ongoing COVID symptoms and bear this in mind.   This article is courtesy of our Legal Partners, Freeths LLP