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In landmark ruling caretaker successfully claims that ‘long COVID is a disability’

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of Mr T Burke v Turning Point Scotland Mr Burke was employed by Turning Point in the role of caretaker/security in the period from 23 April 2001 until his employment was terminated on 13 August 2021. The reason for his dismissal related to Mr Burke’s continuing absence from work.

Mr Burke first contracted COVID-19 in November 2020. He became absent from work and did not return prior to dismissal. The symptoms of COVID were “very mild at first” for him albeit his wife was severely affected. He described his symptoms as being “flu like” over the isolation period.

However, after the isolation period, he developed severe headaches and symptoms of fatigue. He stated that in the time following isolation, after “waking, showering and dressing”, he would require to lie down to rest from fatigue and exhaustion and that he struggled standing for long periods.

He had been accustomed to walking to the local shop “at the end of my block to buy a newspaper” but that became difficult and ceased. He also found that his concentration was not the same and his sleep pattern was “wrecked” as he would wake up and be unable to return to sleep.

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”.

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. 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.

“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.

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