An employee who caught COVID-19 two and a half weeks before dismissal was not disabled at the relevant time.
Case: Quinn v Sense Scotland 2021
Mrs Quinn, Head of People for Sense Scotland, tested positive for COVID-19 on or around 11 July 2021. She subsequently experienced symptoms including fatigue, shortness of breath, general aches and headaches, which affected her everyday life and disrupted her sleep. She struggled with daily activities including shopping and driving.
On 26 July, she contacted her GP to arrange an appointment. On 27 July, she was dismissed from her employment. On 2 August 2021 Mrs her GP deemed her unfit to work due to ongoing symptomatic COVID-19. On 12 September, six weeks following her dismissal, she was deemed unfit to work due to post-COVID-19 syndrome and diagnosed with long COVID.
Mrs Quinn brought a direct disability discrimination claim, among other claims, relying on the impairment of long COVID including having COVID-19 for longer than normal. As a preliminary issue, a tribunal had to determine whether she was disabled at the time of her dismissal.
Mrs Quinn stated that COVID-19 and long COVID are part of the same condition, and that other 50-year-old women with no underlying health conditions recovered more quickly than her after two weeks. Consequently, it could have been predicted that she would experience long COVID.
The Employment Tribunal
The employment tribunal found that she was not disabled under the Equality Act 2010 as at the time of her dismissal, she did not have long COVID, having not been diagnosed until six weeks later. While the impairment of COVID-19 had an adverse effect on her ability to carry out normal day-to-day activities, this effect had lasted only two and a half weeks at the relevant time and was not long term.
The substantial majority of people who catch COVID-19 do not develop long COVID. Accordingly, it cannot be said that the risk of developing long COVID could have been predicted. The Claimant was not therefore disabled under Section 6 of the Equality Act 2010 at the relevant time.
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Posted on September 20, 2022
