Disability case law developments: how businesses manage sickness absence and Long Covid

17 August 2022


disability long covid sickness absence

Long Covid Case Law

The first case is that of Burke v Turning Point Scotland. This was a case involving claims for unfair dismissal, discrimination on the grounds of disability and age and failure to pay a redundancy payment. This case uniquely required an evaluation of Long Covid’s status as a potential disability protected by the legislation. The case has not been fully resolved yet but in a preliminary hearing the Judge ruled that Long Covid CAN be defined as a disability and will be in this case. One of the key points turned on whether or not the impairments that Long Covid caused were (a) substantial and (b) long term. The Company were in possession of several GP reports and more importantly, two Occupational Health (OH)  reports that identified no substantial impairments and crucially both OH reports specifically confirmed that he was fit to return to work to his full range of duties with no reasonable adjustments required.

However, and in some commentator’s opinion, inexplicably, (and probably to the employer’s astonishment) the judge decided that he preferred the oral evidence of the Claimant and his daughter to that contained in the medical records and reports. Observers await the findings of the full Tribunal hearing with great interest.

A preliminary decision is not binding and while the belief among employment lawyers is that the impact will be that Long Covid CAN be defined as a disability, each case will be determined on its merits. The key point is likely to be a blend of the severity of the impairment and the prognosis for duration. The published research considered by this Tribunal suggests that Long Covid can last from 3 months to 12+. In Jersey if the duration is “likely” to be six months or more the claimant would almost certainly be considered to be disabled.

Disability Case Law

Covid was also one factor in the case of McKenzie and University Hospitals of Leicester NHS Trust. The main factor here, however was how the Trust interpreted and applied its sickness absence/capability policies.

It was not disputed that the Claimant had a significant sickness absence record. In her ten years service she had some 300 days of sickness absence and in her final 12 months of employment she was absent for 85 days. The Claimant’s absence level was eight times higher than the target set by the Trust’s Absence Management policy. The reasons for her absences included a fractured ankle, stress caused by “her circumstances at home”, long term depression, and multiple, frequent short-term absences caused by migraine, and one diagnosed as sinusitis. The home circumstances were related to her being the prime carer for an elderly and ill grandmother. She had one period of 70 days absence  which she admitted was as a result of her discontinuing her medication. She received a number of formal warnings during her employment and was set attendance targets which she frequently failed to reach. It was acknowledged that she received support from her manager and over the years the Trust did not issue Final Written Warnings when it could have done but repeated simple written warnings. The absences persisted and deteriorated and in 2019 and 2020 the Trust applied its policy, including the recommended targets, and moved through the formal stages and eventually dismissed.

The Trust had received a report from Occupational Health stating that the Claimant was fit to return to work in her role as a Deputy Ward Sister on a phased basis. The Claimant maintained that wearing PPE was not an option for her – which in mid-2020 was of course an absolute requirement for a ward nurse – because it would impact on her attendance level and prevent her reaching targets,  and further, she could not guarantee that she could constantly carry the ward bleep (a job description essential for her role). The Trust concluded that on this basis the Occupational Health proposals were unrealistic and would be ineffective.

The Tribunal disagreed.  They ruled that the Trust should have applied the phased return plan, adjusted and supported as necessary to accommodate the Claimant’s disabilities. Further the Trust should have discounted all of the absences related to migraines and those related to anxiety/ stress caused by home circumstances. The Judge also decided that the sinusitis episode was “probably” Covid related and should have been excluded. The judge also ruled against the Trust’s defence that its actions were proportionate in that they achieved the legitimate aim of ensuring and maintaining appropriate levels of care and services to patients. The Claimant admitted that “her frequent and lengthy absences had a direct impact on the level of service in her ward and on some aspects of nurse leadership”. Despite this the Judge ruled that the Trust’s aim was legitimate, but it was not proportionate – and employers need to prove both!

The Claimant was awarded a total of £38,072.24.

Lessons Learned

In both of these cases one can imagine employers and their lawyers shaking their heads in disbelief, articulating versions of “How did we lose that one?”.

There is no requirement in law or codes of practice to discount all absences related to a disability, but it is recommended that SOME should be discounted as an adjustment “if this is reasonable” – the last word being measured by pieces of string of course.

What should YOU do?

  1. Be prepared to accept that Long Covid can be a disability and a protected characteristic in law (UK and C.I.).
  2. Revise your absence management/sickness policies (and associated training) as required, to make clear that the management of staff with a disability needs to be handled very carefully with advice and guidance from HR and OH. Remember it is important to ask the right questions of and provide the right information to OH.
  3. Always consider discounting some if not all disability related absence, assessing reasonableness and consistency, albeit on a case by case basis, and highlight this in any handbook or policy references to Bradford Factor or other triggers and targets tools that you may use.

If you have any concerns or require any advice in this area, our experienced HR consultants can help. Email us hello@hrnow.je or call us on: 01534 747559.