For the purposes of the Equality Act 2010 (EqA), a person has a disability if:
- They have a physical or mental impairment; and
- The impairment has a substantial and long-term adverse effect on their ability to carry out day-to-day activities
In the recent case of Quinn v Sense Scotland ETS/4111971/2021, an employee (Mrs Quinn) tested positive for COVID-19 shortly before she was dismissed but was diagnosed with long COVID six weeks after her dismissal. Mrs Quinn brought a claim for disability discrimination against her employer. An employment tribunal found that Mrs Quinn was not disabled for the purposes of the EqA at the relevant time, i.e. the time of her dismissal, and therefore dismissed her claim for disability discrimination.
Mrs Quinn tested positive for COVID-19 on or around 11 July 2021, experiencing fatigue, shortness of breath, pain, discomfort, headaches and brain fog. These symptoms impacted Mrs Quinn’s ability to exercise, socialise and drive, clearly having an adverse effect on her ability to carry out day-to-day activities.
The Tribunal’s findings were as follows:
- At the time of her dismissal, Mrs Quinn was suffering from the impairment of COVID-19
- Her impairment had an adverse effect on her ability to carry our normal activities
- The effect on her ability to carry out normal day-to-day activities was substantial (i.e. more than minor or trivial)
In conclusion the tribunal ultimately found that, at the time of Mrs Quinn’s dismissal, the substantial adverse effect on her day-to-day activities had lasted only two and a half weeks. At the time of her dismissal, Mrs Quinn had not been diagnosed with long COVID and was not advised of a possible risk of long COVID until around 4 weeks’ after her dismissal. Mrs Quinn was diagnosed with long COVID some 6 weeks after her dismissal. When passing judgment, Employment Judge Sutherland commented that “someone who develops long COVID is at risk of suffering that for more than a year. Accordingly it can be said that it could happen that she would go on to develop long COVID and suffer from it for more than a year. However the substantial majority of people who contract COVID-19 do not go on to develop long COVID and do not suffer from it for more than a year.” Accordingly, it could not be said that the risk of suffering from long COVID could happen. Mrs Quinn was therefore not disabled under section 6 EqA at the relevant time. Mrs Quinn’s case can be distinguished from that of Mr Burke who had been absent from work with COVID-19 for 9 months at the time of his dismissal and was disabled for the purposes of the EqA (Burke v Turning Point Scotland ETS/4112457/2021).
What does this mean for employers?
In light of the Quinn and Burke cases, employers should be mindful of the effects of COVID-19 and long COVID going forwards, particularly where an employee has been suffering from symptoms of COVID-19 for a prolonged period of time or has been diagnosed with long COVID during their employment. The cases of Quinn and Burke demonstrate that the timing of the illness is imperative for the purposes of the EqA.