Long Covid found to be a disability
An Employment Tribunal has found that an individual with long Covid was disabled within the meaning of section 6 of the Equality Act 2010.
Section 6 of the Equality Act defines "disability" as follows:
- A person (P) has a disability if:
- P has a physical or mental impairment, and
- The impairment has a substantial and long-term adverse effect on P's ability to carry out normal day to day activities.
The term “substantial” means more than minor or trivial and “long term” means has lasted or is likely to last for 12 months or more.
The claimant was employed as a caretaker at Turning Point Scotland for over 20 years until his employment was terminated in August 2021.
The claimant contracted Covid-19 in November 2020 and never returned to work. He first suffered with “very mild” symptoms and described them as “flu like”, but later developed severe headaches and fatigue. The claimant began to have difficulties with certain activities and suffered from joint pain. Throughout his period on sick leave, the claimant obtained a number of fit notes from his GP, which described “post-viral fatigue” and later “long Covid”, but did not fully particularise the symptoms. All his GP fit notes stated that he was not fit to return to work.
The respondent separately carried out two occupational health assessments, which both concluded that the claimant’s symptoms were improving and that he was medically fit to return to work. The OH reports stated that the claimant’s condition was unlikely to amount to a disability. Although the claimant suggested he may be willing to return to work, he ultimately did not as his symptoms worsened. The respondent stopped paying sick pay from around June 2021.
In August 2021, the claimant was dismissed. The respondent stated in the letter of dismissal that as a charity it could not keep the role open and it did not think the claimant would be able to return to work.
As a result the claimant presented claims for unfair dismissal, discrimination because of disability and age, and failure to pay a redundancy payment. A preliminary hearing took place to decide the issue of disability.
At the preliminary hearing the claimant stated that his symptoms were unpredictable and that he had had difficulties showering, dressing and cooking, had sleep disruption and had been unable to socialise. The claimant’s daughter gave evidence that her father had been fatigued, had no appetite and had lost weight, but that matters had improved from January 2022. The claimant argued that his condition met the definition of a disability.
The respondent argued that the claimant was exaggerating his symptoms. It stated that his GP reports did not fully particularise the claimant’s condition, did not suggest that the impairment adversely impacted his ability to carry out day to day activities, and appeared to be based on what the claimant was saying rather than any examination. The respondent also argued that the OH reports contradicted the evidence of the GP records.
The Tribunal accepted that the GP reports did not fully particularise the issues, agreed that the OH reports contradicted the GP reports but, on the balance of probabilities, accepted the claimant’s evidence. The Tribunal acknowledged that there had been restrictions on face-to-face GP meetings and that long Covid symptoms fluctuated. The Tribunal also noted that, given the claimant was not in receipt of sick pay after June 2021, there was no financial benefit for him to remain on sick leave.
The Tribunal considered each element of the definition of disability under the Equality Act 2010 and found:
- The claimant had a physical or mental impairment, being “post viral fatigue syndrome” caused by Covid-19;
- The impairment had an adverse effect on the claimant’s ability to carry out day to day activities; by the claimant’s evidence, he had struggled to walk to the shop or do chores, and had difficulty concentrating;
- Whilst the Tribunal acknowledged the claimant’s symptoms varied, overall it held that the adverse effect was substantial;
- Whilst noting that the condition was difficult to pin down, it also held that the condition could well last for 12 months when viewed from the dismissal date and the adverse effect was therefore long term.
Given the above, the Tribunal found that the claimant was disabled for the relevant period.
Why this matters?
Throughout the pandemic, there has been speculation as to whether long Covid could amount to a disability under the Equality Act 2010, but this is the first Tribunal decision to reach that conclusion. It is important to bear in mind that this is a first-tier Scottish Tribunal decision and is not binding on other Tribunals. This finding is fact-specific and each case will depend on its own facts and circumstances, given that long Covid is not automatically classed as a disability. In addition, given the return to in-person appointments, Tribunals may not be as accepting of GP fit notes which are not based on a full in person examination going forward.
However, it remains a significant initial finding, and it is clear that in circumstances where an employee may have symptoms of long Covid, it is crucial to consider the possibility that the condition may amount to a disability, and employers should be cautious with their approach to managing sickness absence in such cases.
Burke –v- Turning Point Scotland
When does a “without prejudice” letter lose its privilege?
A recent EAT case considered the above point. The background is helpful in understanding the case.
The claimant returned from maternity leave in July 2020. In October she was informed that her role was at risk of redundancy and later that month she raised a grievance (by email) complaining of discrimination on several grounds. The email had attachments, including a CV of another employee. In November she lodged a further grievance about equal pay, again by email with attachments, including commercially sensitive client transaction documents. The claimant copied all her emails into her home email address, and blind-copied her husband. Her grievances were not upheld and she was informed of this in December.
On 6 January 2021 a HR business partner informed the claimant that she (the claimant) had sent confidential company material to her home email address although she was also informed that this was a “low-level data breach”. She was asked to explain matters and to delete all the emails (which she did). However, the respondent decided to investigate the matter and, on 19 January, an investigator was appointed.
On 22 January, and apparently out of the blue, the respondent’s solicitors sent a letter to the claimant marked “without prejudice and subject to contract”. Contrary to the low-key tone of the respondent, the solicitors were aggressive and threatening. They alleged that the sending of the emails/attachments was a breach of contract entitling the respondent to dismiss the claimant summarily and without notice, that she may have committed a criminal offence for disclosing personal data, that she had lied to her employer when she said that she had not sent material to a third party and that, overall, she may have acted “without integrity” by breaching the rules of her regulator, the Financial Conduct Authority, which could make it hard for her to find a job in the future. The letter attached a settlement agreement to terminate her employment in return for a payment of £37,000.
The claimant alleged that the letter, although marked “without prejudice”, should lose its privileged status and be disclosed. The claimant relied on the exception to the general rule on privileged communication, which states that legal privilege cannot be used to cloak “perjury, blackmail or other unambiguous impropriety”. The claimant believed the letter was both outrageous in its allegations and wholly inconsistent with the respondent’s actions (the investigation into her conduct had not even started). It was an act of unambiguous impropriety.
The Tribunal agreed. They said the solicitors had used privilege as means of threatening and placing pressure on the claimant to coerce her into agreeing a settlement by grossly exaggerating the severity of her conduct. They took a particularly dim view of the threats relating to the FCA and her future employment. The letter had lost its privileged status and was now disclosable in the proceedings.
The respondent appealed to the EAT.
The EAT disagreed with the Tribunal. Their view was that the ability to engage in legally privileged communications was so valuable and important that the bar for exclusion had to be very high. If the bar were not very high, parties might be reluctant to engage in “without prejudice” correspondence and discussions, and this was a means of settling disputes that needed the utmost protection. The EAT also found that, although the allegations contained in the letter were exaggerated, even grossly so, they were technically true as a matter of law. It was highly unlikely that the claimant would face criminal liability under s170 of the DPA - but technically possible, and the allegations relating to the FCA were exaggerated but not false. The claimant had after all lied to her employer, and had disclosed to a third party personal data of another employee and commercially sensitive client information.
The EAT made it clear they did not condone the conduct and believed the solicitors had “sailed close to the wind”, but the bar was very high and the conduct, although not best practice, was not unambiguous impropriety.
Why this matters
This case emphasises that the high bar to exclude legal privilege. The EAT emphasised that it was very important that parties are able to speak freely in “without prejudice” correspondence and that, in a case such as this, the allegations would have to be false to reach that bar. It is not unusual for parties to send strongly worded “without prejudice” letters or to have heated “without prejudice” discussions to try and settle claims, and their ability to do this should not be fettered unless the conduct is genuinely and unambiguously inappropriate or, as in this case, dishonest.
Swiss Re Corporate Solutions Limited –v- Sommer
Compensatory award made in excess of statutory cap
The Scottish EAT awarded a claimant a compensatory award of £120,353, far in excess of the statutory cap which at the time was £74,200. It held that a compensatory award already paid by an employer earlier in the case must be deducted from a further compensatory award made (in the same case) before the statutory cap is applied. The circumstances are unusual but how did this happen?
The claimant was held to have been unfairly dismissed. She applied for compensation and an order for re-engagement. At a first remedies hearing, the Tribunal ordered the respondent to pay compensation of £46,153. The respondent paid the award.
The claimant then appealed to the EAT on remedy and the case was then remitted back to the Tribunal.
At a second remedies hearing following the remittal, the Tribunal held that the first compensatory award (£46,153 - already paid) was not sufficient. The Tribunal re-assessed the claimant’s overall losses at £128,961.59 and awarded the then maximum compensatory award of £74,200, even though the respondent had already paid a compensatory award of £46,153. This meant that the respondent, having already paid a compensatory award of £46,153, had to pay another compensatory award of £74,200 – an aggregate total of £120,353.
The respondent appealed on the ground that the first compensatory award it had paid should be deducted from the second compensatory award after the statutory cap had been applied, so that the claimant did not receive an award that was more than the unfair dismissal statutory cap of £74,200.
The EAT considered the relevant provisions of the Employment Rights Act 1996 (ERA) to determine how the second compensatory award should be calculated. Under the ERA, the second compensatory award had to be “just and equitable” (s123(1)) but more specifically section 124(5) ERA states that:
The limit imposed by this section applies to the amount which the employment tribunal would, apart from this section, award in respect of the subject matter of the complaint after taking into account—
- any payment made by the respondent to the complainant in respect of that matter; and
- any reduction in the amount of the award required by any enactment or rule of law.
The EAT held that the wording of the statute had to be applied strictly. It held that, in accordance with the ERA, the employee’s total compensation should be calculated, then any prior payments covered by (a) and (b) of s124(5) ERA deducted, and only then should the statutory cap be applied.
It was held that a “prior payment” under s124(5) included any prior payment of a compensatory award - the wording was “any payment made by the respondent to the [claimant] in respect of [the] matter”. The Tribunal held this applied to the first compensatory award of £46,153 and therefore this payment had to be deducted before the statutory cap was applied.
So the Tribunal, in a second calculation the claimant’s losses, found that her total losses were £128,961.29, the prior payment of £46,153 was deducted (despite it being a compensatory award) and the statutory cap was then applied. The respondent had to pay another £74,200 on top of the £46,153 it had already paid.
The EAT did note that it had sympathy for the respondent but the respondent did not foresee that the claimant’s appeal would cause the Tribunal to reconsider the compensatory award and, had it done so, may have only made the payment once the compensatory award was made final. In effect, the respondent was penalised for paying the first compensatory award promptly (as it is supposed to). If it had waited until the appeal and the second remedies hearing, it would only have paid £74,200.
Why this matters
This case is a warning to employers of the risks of paying compensatory awards at an early stage before they are 100% finalised and/or before an appeal is lodged. Following this decision, employers may be understandably reluctant to pay compensatory awards where there is a risk of an appeal and where the issue of remedy might be appealed and remitted.
The case is also a reminder of the way in which Tribunals are strictly bound by their own rules, even when the outcome is patently unfair to one party. It is analogous in some ways to the recent case on ACAS Early Conciliation (Pryce-v- BaxterStorey) where an unrepresented claimant was prevented from bringing discrimination claims on a technicality. Although she submitted all the relevant Tribunal documents to bring the claims, she did not submit the documents in the right order. The Tribunal therefore had no jurisdiction to hear the claims.
Dafiaghor-Olomu-v-Community Integrated Care
News items
4-day week?
On 6 June, around 70 companies in the UK began a six-month trial of a four-day working week in a pilot programme led by 4 Day Week Global. Provided that they commit to 100% productivity, companies have agreed to pay 100% of pay to employees participating for working 80% of the time. The trial will be overseen by academics from Oxford and Cambridge universities, as well as think tanks in the United States, who will assess the impact on worker happiness and business productivity.
Employment Tribunal statistics
The Ministry of Justice has published Employment Tribunal statistics for March to June 2022. The Tribunals transitioned to a new database during March to May 2021 and therefore only partial statistics are available for the year 2021/2022 and the figures are subject to checks.
Fit notes can be issued by wider group of professionals
This issue is covered fully in our blog of last week but, briefly, from 1 July 2022 a wider group of healthcare professionals will be able to issue fit notes to employees. The right to issue fit notes will now be extended to pharmacists, nurses, physiotherapists and occupational therapists. The idea behind this is to reduce the workloads of GPs.
The new fit notes are intended to be for statutory purposes only (for obtaining SSP and social security benefits) but it seems there is little doubt that employers may be faced with difficult decisions as to whether to accept fit notes from (say) pharmacists which go further than eligibility for statutory benefits/rights.
