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An Employment Tribunal finds long covid to be a disability

We have just had our very first Employment Tribunal in the UK giving someone disability status by virtue of them having contracted COVID-19, which led to post viral fatigue syndrome (and what we are tending to call Long COVID).  A charity caretaker, Terence Burke, worked for charity Turning Point Scotland from 2001.  He first contracted COVID-19 with a positive test on 15 November 2020.  His symptoms were “very mild at first”.  He described them as being “flu like” over the isolation period.  However, after that, he developed severe headaches and symptoms of fatigue and exhaustion.  He also struggled with completing normal day-to-day activities, such as getting dressed, cooking, ironing and shopping.  He experienced joint pain in his arms, legs and shoulders, together with a loss of appetite and concentration.  He didn’t feel well enough to socialise, including at Christmas, or attend important events, such as his uncle’s funeral.  He obtained several fitness for work certificates from 25 November 2020 all the way until July 2021.  They said he was unfit for work “after effects of long covid – still fatigued” and the official diagnosis was “post viral fatigue syndrome”.  Within this period, he was referred twice to occupational health, with the conclusion of each being that he was medically fit to return to work and advice provided around a phased return.  During the second referral, Terence supplied no evidence that supported his assertion that he was extremely fatigued and unable to conduct day to day activities.  Nevertheless, a Scottish Tribunal was persuaded by the oral evidence that he and his daughter, Tressa Burke, CEO of Glasgow Disability Alliance, gave at Tribunal.  It found that Terence Burke was disabled with a physical impairment of post viral fatigue syndrome caused by Long COVID from 25 November 2020 to 13 August 2021.  It had an adverse effect on day to day activities which was substantial, meaning more than minor or trivial, and it was long term as, in his case, it was likely to last for a period of 12 months or more.  He was sacked on ill health grounds, having had nine months of sickness absence certified by his GP.  His disability discrimination and wider associated cases will now proceed to be determined at a final hearing. 

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