Caretaker successfully claims that 'long COVID is a disability' in landmark ruling

The caretaker at a charity has successfully claimed that long COVID is a disability.

In a landmark ruling, one of the first of its kind in the UK, Terence Burke has been given permission to bring a case of disability discrimination against his former employer.

An employment tribunal in Scotland found that coronavirus had left him with "substantial and long-term" side effects.

It heard that Mr Burke took sick leave from work because he struggled to complete simple household chores and even missed a family funeral because of his extreme tiredness.

He was later sacked after he was so exhausted he was unable to turn up for work for about nine months, the panel was told.

Watch: Woman shares her 'long, difficult' experience of long COVID

It is not the first case of its kind. A previous employment tribunal, held in Manchester, of Mrs H Matthews against Razors Edge Group, ruled that she was disabled by reason of long COVID.

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.

The tribunal, held remotely in Scotland, heard that Mr Burke had worked asa caretaker for the charity, which provides services to those with learning disabilities people who are homeless, since April 2001.

He and his wife contracted COVID-19 in November 2020 and he did return to work up until the point he was sacked.

Read more: COVID infections soar in England by more than 300k in a week

The tribunal heard his symptoms were "very mild at first" and "flu like" during his self-isolation period. However, he then developed severe headaches and fatigue.

Mr Burke told the tribunal he would need to lie down after getting dressed in the morning to rest from "fatigue and exhaustion" and could no longer walk to the shop at the end of his road to buy a newspaper because it became too tiring.

He also suffered 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".

His daughter, Tressa Burke, chief executive of the Glasgow Disability Alliance charity, told the tribunal her father was "fatigued for months", had no appetite and lost weight.

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 2010.

Employment Judge James Young said 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 said: "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.

Read more: New COVID wave could cause 'mass sickness', expert warns

"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.

Kenny Crawford, director of finances and resources at Turning Point Scotland, told Yahoo News UK the charity would not comment on an ongoing case, but added: “Turning Point Scotland recognises its legal obligations under the Equality Act 2010 with all sections of society.

"In particular, we not only endeavour to be enabling with people who have a disability whenever reasonably possible, but also go beyond the statutory provision with a key focus on people who have previous lived experience of homelessness and addictions."

Dr Jenny Ceolta-Smith is an occupational therapist and member of the Long COVID Employment Group and co-founder of Long COVID Work, which supports employees with the condition.

She told Yahoo News UK the tribunal's ruling was "good news for workers because long COVID symptoms can have a substantial impact on an individual’s ability to engage in activities of daily living".

She added: "Therefore, reasonable adjustments in the workplace are likely to be needed when a worker is able to return to work.

"I hope that employers who are not doing the right thing for their workers with long COVID will learn from this case and others that will follow."

Gary Wedderburn, an adviser at Acas, the Advisory, Conciliation and Arbitration Service, an independent public body that works with millions of employers and employees, told Yahoo News UK: “The effects of long COVID are varied and can fluctuate.

"By law, a disability can be any physical or mental impairment that has a 'long-term and substantial adverse effect' on a person's ability to do normal day-to-day activities.

“There have been legal rulings recently regarding employees who have been affected by long COVID. Our advice is clear that employers should focus on the support and reasonable adjustments they can make for employees who are impacted by long COVID.”

In a statement last month, the Equality and Human Rights Commission (EHRC) said: "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.”

Last month, the Office for National Statistics (ONS) reported that there are an estimated 1.8m people in the UK with long COVID, whereby symptoms persist for more than four weeks after the first suspected coronavirus infection.

Of that figure, 13% (or 235,000 people) say they were still suffering from the condition at least two years after they first caught the virus.

Watch: Coronavirus vaccine halves risk of long COVID, says study