A recent tribunal ruling serves as a reminder that employers dealing with an employee off sick with 'long Covid' should carefully consider whether the individual could be disabled within the statutory definition, bearing in mind evidence that it is common for symptoms to fluctuate and that some individuals do continue to suffer for 12 months.
In ruling that the claimant's 'long Covid' was a disability in Burke v Turning Point, the tribunal took note of the June 2021 TUC report setting out that the most common symptom is fatigue (with poor concentration, joint pain, headache and muscle pain also noted), that for many people symptoms vary over time, and that for around a third symptoms can last for 12 months. The tribunal rejected suggestions that the claimant was exaggerating his symptoms, noting that this was unlikely given sick pay entitlement had already been exhausted so there was no financial incentive to remain off work.
Each case will depend on its own facts, but an individual may well be able to meet the statutory definition by showing a substantial adverse effect on day-to-day activities likely to last for at least 12 months, notwithstanding that there may have been short periods when the symptoms temporarily subsided (and even if occupational health happen to have assessed the individual as fit to work during one of these periods, as in Burke). If so, the employer may have a duty to make reasonable adjustments such as offering flexibility to facilitate a return to work (for example, remote work, part-time hours, or a phased return) or adjusting absence management policies, while premature dismissal may expose the employer to the risk of disability discrimination claims.
This latter risk is demonstrated by the EAT ruling in Department for Work and Pensions v Boyers. The claimant suffered from severe migraines and mental health issues which she claimed were exacerbated by a colleague's bullying and so was unable to work in her original team; she was off sick for a prolonged period apart from a short trial in a different role and location. The employer deemed the trial unsuccessful without proper evaluation and despite its failure to give her reasonable support in the new role. In these circumstances it was discriminatory to dismiss for long-term absence, given that a properly supported and evaluated trial might have meant she was able to continue in employment.
Employers considering dismissal for long-term absence should first consider whether there are less discriminatory alternatives on the facts, such as a return to an alternative role and, if so, ensure that the claimant is given a reasonable trial in the new role with appropriate support.
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