News and Insights
7 July 2022
Long Covid symptoms include fatigue, shortness of breath, difficulty concentrating, memory problems and pain. One of the difficulties for employers in dealing with Long Covid is that the condition may be hard to diagnose, with symptoms that may fluctuate significantly from day to day. (It’s not lost on the writers that we have just used the word “may” twice in one sentence, reflecting the uncertainty which is part and parcel of the challenges around this condition.)
A recent Scottish Employment Tribunal decision (Burke v Turning Point Scotland) has confirmed that Long Covid will constitute a disability if a person suffering from the condition:
- Has a physical or mental impairment; and
- The impairment has a substantial and long term adverse effect on the person’s ability to carry out normal day to day activities.
While the Scottish definition of disability is slightly different from that in Jersey it is very similar. Particularly given local experiences of Long Covid, we do not find this part of the judgment surprising.
What is perhaps more difficult is the way in which the judge’s findings appear to reject the content of occupational health reports, focusing more heavily on scant GP records and the subjective feelings of the individual himself. Arguably, such an approach risks putting employers in an invidious position, if independent evidence on hard-to-diagnose conditions may be side-lined by tribunals in favour of self-reporting of symptoms.
The Jersey Tribunal’s 2021 annual report noted that claims of disability discrimination made up over half of discrimination claims in 2021. In the case of Price v Faulkner Fisheries the Tribunal noted that “the bar for being classified as ‘disabled’ under the [Discrimination (Jersey) Law 2013] is low.”
Sadly, Long Covid can have a huge impact on the lives of sufferers. Covid-19 continues to raise daily challenges for employees and employers alike.