Post Viral Fatigue and Work: Is Long Covid a Disability?
Is Long Covid a disability?
Disability is one of the grounds for which people can claim they have been discriminated against. However, for the most part, in order to bring a claim it is necessary for an employee or worker to prove they are disabled in law.
A key question in such claims is often therefore whether somebody is disabled; if not then any claims for disability discrimination will fail.
With many millions having now had Covid (whether diagnosed or not), there are hundreds of thousands of people and perhaps more in Britain who will have long Covid. This is an obviously new condition, with symptoms including ongoing post viral fatigue.
The National Institute for Health and Care Excellence (NICE) has defined 'long Covid' as 'signs and symptoms that develop during or after an infection consistent with Covid-19, which continue for more than 12 weeks and are not explained by an alternative diagnosis. It usually presents with clusters of symptoms, often overlapping, which can fluctuate and change over time and can affect any system in the body'. Common symptoms include coughing, breathlessness, fever, palpitations, fatigue, cognitive impairment and joint pain.
How does the Equality Act effect post viral fatigue and work?
In order to be disabled, a claimant must show they have:
- A physical or mental impairment, and
- the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Long term is defined by Government guidance as having lasted or being likely to last for 12 months, and substantial is defined as more than minor. A normal day-to-day activity means something that is normal for people generally, rather than the particular individual bringing the claim – examples typically come from outside of work, and range from getting dressed and walking, to cleaning and talking.
It is important to note that the law is focused on what a person cannot do, and not on any diagnosis of conditions. For the most part a medical diagnosis, whilst helpful evidence, does not take the matter much further forward in establishing whether someone is disabled.
Many claimants who believe they are suffering from Long Covid may not ever have had a definite test confirming Covid, for example because mass testing did not happen during the early stages of the pandemic. And although there are cases where those with long Covid have received scans showing, for example, lung damage, in many cases there will be only a clinical assessment of how a claimant reports their symptoms as ongoing, and in many cases even that may not take place.
It is important that an employee who believes they are suffering from long Covid, and in a way which is substantial enough to meet the disability threshold, focuses their evidence on the post viral fatigue difficulties they have now, and what they cannot do, or can only do slowly or with difficulty, and compare that to how they were previous to having had Covid.
The recent tribunal decision of Burke v Turning Point found that the claimant was disabled under the equality act, despite having been determined as fit to work during a brief respite period from his long-covid symptoms. In this case the employer will have to make reasonable adjustments to facilitate a return to work. Burke was dismissed on the grounds of his ill health.
It is the effects of post viral fatigue that is important. It is not necessary for a disability to have a medical name to be covered – quite often people will have significant symptoms but despite extensive medical tests, no diagnosis is provided. This does not impact on any finding about whether someone is disabled, where the focus is simply on the difficulties somebody has as a result of a physical and/or mental impairment only.
There will never be clear cut answer as to whether long Covid is a disability which applies to all cases. Each case will depend on its own particular facts, and there will be situations where be tribunals which find that a claimant before them with long Covid is disabled, and other tribunals which do not.
Each individual claimant will need to prove on the balance of probabilities that their particular symptoms meet the criteria, and especially that they have a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities.
Post Viral Fatigue: are you facing discrimination over disability?
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