Long COVID – Disability or Not? Quinn v Sense Scotland 

According to recent findings, and as more workers are testing positive for Coronavirus, an increasing amount of companies are dealing with long COVID absence difficulties. The Employment Tribunal has investigated an interesting case involving long COVID and whether it qualifies as a disability. Our team review the case of Quinn v Sense Scotland below.  a disability. Our team review the case of Quinn v Sense Scotland below.

What does the Equality Act say? 

Under the Equality Act 2010, for a person to be considered “disabled”, an individual must satisfy a four-part test. One of these is that the impairment must be long-term, meaning it has, or is expected to last 12 months or more. The question in this case was whether contracting COVID-19 could be classed as a disability due to its potential to develop into Long COVID.

The Details of the Case 

The employee tested positive for COVID-19 and experienced fatigue, shortness of breath, pain and discomfort, headaches, and brain fog. This affected the employee’s day-to-day activities, such as driving and sleeping. She also stopped socialising and exercising. The employee was dismissed two weeks after being diagnosed with it. Two months after the employee’s dismissal, she was diagnosed with Long COVID and deemed unfit to work.

The employee brought a claim for disability discrimination, among other claims. A preliminary issue, for the Tribunal to consider, was whether the employee was “disabled” at the time of dismissal. The employee relied on the impairment of Long COVID. The employee argued that COVID-19 and Long COVID were a part of the same condition. As such, it could and should have been expected that the employee would experience it and therefore be protected from disability discrimination.

The Employment Tribunals Decision 

The Tribunal determined that the employee was not disabled for the following reasons:

• At the time of the employee’s dismissal, she did not have Long COVID.
• Although the impairment had a substantial adverse effect on her ability to carry out normal day-to-day activities, this only lasted two and a half weeks at the relevant time and so was not long term; and  that, for many people, COVID-19 does not develop into Long COVID so, it was not foreseeable.

What can HR learn from this case? 

This case will come as some assurance to employers that just because an employee has, or has previously had COVID-19, this will not automatically qualify them as a “disabled” person. They must still satisfy the usual test for disability and demonstrate that they were disabled at the time of the alleged act they are complaining of. It is often useful to get a second opinion when such matters arise. So, please do not hesitate to contact us here at Vista if that would be of assistance.

This month, we examine the most recent decisions made by the employment tribunal and the lessons that HR may take away from them. We discuss a variety of subjects in October, including Brexit and employment law, legal privilege, unfair dismissal, and strikes. You can sign up for our monthly newsletter here to learn more.