Employment Tribunal rules woman diagnosed with Long Covid after dismissal was not unfairly dismissed

Gillian Quinn, formerly an employee of Sense Scotland, argued that her original Covid-19 diagnosis and the subsequent onset of Long Covid formed part of the same condition and as such she was disabled within the meaning of the Equality Act 2010 at the time of her dismissal in July 2021.

The case was heard by Employment Judge Michelle Sutherland. The claimant appeared in person while the respondent was represented by Mr B Doherty, solicitor.

Likely to develop

The claimant, aged 50, had worked as Head of People for the respondent from 9 December 2019 until her dismissal on 27 July 2021. Since March 2020 she had been working from home due to the commencement of pandemic restrictions. On 11 July 2021 she tested positive for Covid-19 and experienced symptoms including fatigue, shortness of breath, pain and discomfort, and disruption to her sleep. These symptoms persisted after the termination of her employment.

On 26 July, the claimant made an appointment with her GP, who on 2 August deemed her unfit for work because of an upper respiratory tract infection due to SARS-CoV-2. She was advised of a diagnosis of Long Covid on 12 September 2021 after a series of blood tests and a spirometry lung test. It was initially the claimant’s assertion in evidence that it was possible to predict that she would develop Long Covid prior to her dismissal based on an understanding that other women in her age group had generally recovered more quickly than her.

The claimant submitted that Covid and Long Covid formed part of the same condition and that there was no material change in her symptoms since she initially contracted Covid. It had previously been accepted by the ET that Long Covid was a disability, and it could be inferred that she was likely to develop the condition.

It was submitted for the respondent that the issue of disability status could not be determined with the benefit of hindsight, and it was therefore irrelevant that the claimant went on to develop Long Covid after her dismissal. The claimant had Covid at the time of her dismissal which did not have a substantial adverse effect on her normal day to day activities given that she worked and attended their offices after her period of isolation had ended.

Long term effect

In her decision, Employment Judge Sutherland observed: “The relevant time was the time of her dismissal. At the time of her dismissal the substantial adverse effect on her normal day to day activities had lasted 2 and a half weeks. At the time of her dismissal she did not have Long Covid. She was not advised of a possible risk of Long Covid until around 4 weeks after her dismissal. She was not diagnosed with Long Covid until around 6 weeks after her dismissal.”

She continued: “Someone who has contracted Covid is it at risk of developing Long Covid. 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 one to develop Long Covid and suffer from it for more than a year. However the substantial majority of people who contract Covid do not go on to develop Long Covid and do not suffer from it for more than a year. Accordingly it cannot be said that the risk could well happen.”

Assessing the claimant’s long-term effects, Judge Sutherland said: “In the circumstances at the time of her dismissal the substantial long term effect had not lasted for 12 months and was not likely to last or recur for 12 months.”

She therefore concluded: “Accordingly, at the relevant time the claimant did not have a physical or mental impairment which had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. The claimant was not therefore disabled under Section 6 of the Equality Act 2010 at the relevant time. The complaint of disability discrimination cannot proceed and is therefore dismissed.”