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Long Covid may be a disability
By: OH Assessment Ltd
The case (Mrs H Matthews v Razors Edge Group Ltd) was held in November 2021 and has just been finalised and published.
In late March 2020 the employee contracted Covid. The symptoms increased in severity from mid-April 2020, which resulted in the employee being admitted to hospital on two occasions because of breathing difficulties. She was tested for Covid and returned a positive result.
Since then, the employee reported finding it difficult to lift shopping bags because her hands went numb, she could not do her own housework, she found it difficult to cook and standing for any length of time was difficult.
The GP confirmed that during June and July 2020, the claimant was advised to reduce her working hours for her initial 4 week return to work period, with the position to be reviewed thereafter.
An agreement could not be reached and the employee resigned. She then brought a claim for unfair dismissal, disability discrimination, sex discrimination, breach of contract, holiday pay, unpaid wages and other payments.
The legal position
The Equality Act 2010 says that a disability is a physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. Occupational Health practitioners can advise on whether a condition may be a disability or not, however, the final decision is always a legal one.
The Employment Judge concluded that "On balance of probabilities, the claimant was suffering from a physical impairment which was substantial in nature when she was discussing her return to work with Mr Roberts in June 2020."
Furthermore, the Judge said "I find that it would be reasonable to conclude that the physical symptoms could well last longer than 12 months. As a consequence, I am satisfied that these impairments could be considered long-term in nature."
In summary, the judgement concluded "for these reasons, I find that the claimant was disabled at the material time in accordance with section 6(1) Equality Act 2010".
The judgement is in a single specific case, based upon a unique set of facts, and does not set a binding precedent that other Tribunals must follow. It does not mean that other Tribunals are certain to reach a similar judgment for any other claims including Long Covid.
The most salient point is that Long Covid (and any health condition or impairment) is capable of being a disability, if it meets the definition as specified in the Equality Act 2010.
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