Long Covid IS a disability, court rulings in landmark discrimination case

Terence Burke initially suffered from mild coronavirus symptoms but soon suffered from fatigue and headaches that made it impossible for him to go about his day job as a caretaker at Turning Point Scotland

A caretaker has successfully claimed long Covid is a disability in what could prove a landmark court ruling.

Terence Burke is believed to be the first person in Britain to have the condition recognized as a disability after being allowed to be a disability discrimination case against his previous employer.

Mr Burke fell ill with coronavirus in November 2020 and, despite experiencing “very mild” and “flu-like” symptoms during the isolation period, he soon developed a severe headache and fatigue and only returned to work at Turning Point Scotland after being made redundant nine months later.

In its ruling – the first public case of its kind – the panel concluded that the coronavirus had given him “significant and long-term” side effects.

The tribunal heard Mr Burke was put on sick leave while struggling to do simple household chores and even missed a family funeral because of his extreme fatigue.

He was then fired after becoming so exhausted he was unable to show up for work for around nine months, the panel was told.

Having completed a preliminary hearing to determine whether he was legally disabled, Mr Burke’s claim against charity Turning Point Scotland is now open to a full hearing.

The court heard that he had worked as a janitor for the charity since April 2001.

After Mr Burke and his wife contracted Covid, his fatigue developed to the point that he had to lie down after getting dressed in the morning.

The tribunal, held in Scotland, heard he also had joint pains in his arms, legs and shoulders, as well as a loss of appetite and poor concentration.

The court heard he was not feeling well enough to socialize or attend important events such as his uncle’s funeral in December 2020 due to fatigue and a headache “which was very uncharacteristic of him”.

In August 2021, Mr Burke was fired for ill health after being absent from work for nine months, during which time sick leave was extended by his doctor.

His resignation letter read: “In my opinion you remain too ill to return to work and there appears to be nothing further we can do to adjust your duties or work environment that would make your return more likely.”

The tribunal heard that Mr Burke was not feeling better until January this year, although he still suffered from “persistent fatigue” and “flaring up joint pain”.

His daughter Tressa Burke, CEO of the Glasgow Disability Alliance, told the tribunal her father had been “tired for months”, had no appetite and had lost weight.

She said he couldn’t cook and recalled a conversation in which he said he hoped to be able to return to work in April 2021, but was then “zonked” and “exhausted for days”.

After several telephone consultations with his GP, Mr. Burke was diagnosed with ‘Post Viral Fatigue Syndrome’.

The panel ruled that Mr Burke’s long Covid constituted a disability under the Equality Act.

Labor judge James Young ruled: “I consider that the relevant tests are met to meet the definition of disability.”

Mr. Burke will now submit his complaints of wrongful dismissal, disability discrimination, age discrimination and failure to pay severance payments to a final hearing in court.