A caregiver for a charity is thought to be the first individual in the UK to successfully claim that lengthy Covid is a disability.
Terence Burke has been granted permission to file a disability discrimination lawsuit against his former employer, thanks to a landmark labour tribunal decision.
The panel decided that coronavirus had caused him’substantial and long-term’ adverse effects in its decision, which was the first of its kind in the public eye.
Mr Burke was signed off ill, according to the tribunal, because he failed to do routine household activities and even missed a family funeral due to his acute exhaustion.
He was then sacked after he was left so exhausted he was unable to turn up for work for about nine months, the panel was told.
Following the conclusion of a preliminary case to determine if he was legally disabled, Mr Burke’s lawsuit against charity Turning Point Scotland can now proceed to a full hearing.
It comes after people suffering from long Covid reacted with alarm in May when the Equalities and Human Rights Commission (EHRC) made comments that the condition should not be treated as a disability.
The government’s equalities watchdog tweeted: ‘Discussions continue on whether “long Covid” symptoms constitute a disability.
‘Without case law or scientific consensus, EHRC does not recommend that “long Covid” be treated as a disability.’
The tribunal heard Mr Burke had worked as a caretaker for the charity – which provides services to people in need across Scotland including people with learning disabilities or mental health conditions and those experiencing homelessness – since April 2001.
But after he and his wife contracted Covid-19 in November 2020 he became absent from work and did not return until he was sacked.
The tribunal heard his symptoms were ‘very mild at first’ and ‘flu like’ over the isolation period. However, after the isolation period, he developed severe headaches and fatigue.
He said he would need to lie down after getting dressed in the morning to rest from ‘fatigue and exhaustion’ and he struggled standing for long periods.
Mr Burke said he would usually help with the cooking, ironing and shopping but those activities ceased due to a lack of energy.
Before Covid, he said he would walk to the shop at the end of his road to buy a newspaper but that became too tiring.
The tribunal – held remotely in Scotland – heard he was also experiencing joint pain in his arms, legs and shoulders together with a loss of appetite and lack of concentration.
His sleep pattern was also ‘wrecked’ because he would often drift off in the middle of the day or while watching TV.
The tribunal heard he did not feel well enough to socialise or attend important events such as his uncle’s funeral in December 2020 because of fatigue and headaches ‘which was very much out of character for him’.
Despite three households being allowed to meet indoors for Christmas, he did not attend any festive celebrations.
His daughter Tressa Burke, CEO of Glasgow Disability Alliance, told the tribunal her father was ‘fatigued for months’, had no appetite and lost weight.
She said he was unable to cook or shop anymore and she made arrangements for the shopping to be delivered and recalled a conversation where he had said he was hoping to return to work in April 2021 but was then ‘zonked’ and ‘exhausted for days after’.
Following several phone consultations with his GP, Mr Burke was diagnosed with ‘post-viral fatigue syndrome’.
In August 2021, Mr Burke was sacked on ill health grounds after he had not been to work for nine months with sick notes being extended by his doctor throughout that period.
His dismissal letter read: ‘It is my view that you remain too ill to return to work and there appears to be nothing further we can do to adjust your duties or work environment that would make your return more likely.’
The tribunal heard that Mr Burke did not begin to feel better until January this year, although he still suffered from ‘continuing fatigue’ and ‘flare up of joint pain’.
The panel ruled that Mr Burke’s long Covid amounted to a disability under the Equality Act.
Employment Judge James Young agreed Mr Burke’s condition gave him a ‘substantial and long-term adverse effect’ on his ability to carry out normal day to day activities.
The judge ruled: ‘Fatigue affected him badly until around January 2022 and that could “floor him”, sleep remained disturbed and there could be flare up of joint pain.
‘He gave a similar account in August 2021 of symptoms and described requiring to sit and rest “and/or go to sleep” and his legs and body aching on a short walk.
‘That affected his ability to continue with household chores, shop, and his concentration to an extent more than minor or trivial.
‘I consider that the relevant tests are met to meet the definition of disability.’
Mr Burke will now bring his claims of unfair dismissal, disability discrimination, age discrimination and failure to pay redundancy payments to a final tribunal hearing.
A statement on EHRC’s website about whether long Covid should be treated as a disability currently reads: ‘There continues to be discussion of the various symptoms related to Covid-19 that are often referred to as “long Covid” and whether they would constitute a disability under the Equality Act.
‘Given that “long Covid” is not among the conditions listed in the Equality Act as ones which are automatically a disability, such as cancer, HIV and multiple sclerosis, we cannot say that all cases of “long Covid” will fall under the definition of disability in the Equality Act.
‘This does not affect whether “long Covid” might amount to a disability for any particular individual – it will do so if it has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This will be determined by the employment tribunal or court considering any claim of disability discrimination.
‘To support workers affected by “long Covid” and avoid the risk of inadvertent discrimination, we would recommend that employers continue to follow existing guidance when considering reasonable adjustments for disabled people and access to flexible working, based on the circumstances of individual cases.’