Covid Case Law

As expected, we are now starting to see Judgments from the Employment Tribunals and the Employment Appeal Tribunal on the application of the unprecedented situation caused by the Covid pandemic (and the understandably rushed need by the Government to introduce vast new Regulations and law to deal with the pandemic from 2020 onwards).

In a first instance decision (Burke v Turning Point Scotland), a Tribunal found that what has been termed “long Covid” could on the facts of that case constitute a disability within the meaning of the Equality Act 2010.  In this case there was a variety of symptoms, some of which were vague and fluctuating, and some evidence which suggested the employee would not be able to establish disability within the meaning of the Equality Act, but overall, the Tribunal sided with the employee.

In the case, the Claimant employee got over the burden of proving that it was likely to be long-term (in which he would have to prove that the condition lasted or was expected to last more than 12 months in total) by uncertainty around a potential return to work date, on the medical evidence.  This entitled the Judge to find that it ‘could well happen’ that the condition and the substantial effects would be long-term.  


Each case in relation to long Covid will rest on its facts but it is a reminder that with potentially over a million people saying they have long Covid symptoms, it remains a risk for employers that dismissals relating to long Covid could result in claims in disability discrimination.

In another case, Rodgers v Leeds Laser Cutting Ltd, an employee was found not to be automatically unfairly dismissed, because he left his job alleging fears about catching Covid and passing on to vulnerable children.  Whilst an employee’s fear of circumstances giving rise to serious and imminent danger can constitute grounds for automatic unfair dismissal or automatically unfair constructive dismissal, on the facts here, the Tribunal found the employee did not have a reasonable belief in that danger.  

There were a number of matters which led the Tribunal to make such conclusions including the employee being seen out and about driving and working in a pub during the pandemic and the employer’s reasonable steps of maintaining social distancing and other measures.  The facts led the Tribunal and the EAT to uphold the employer’s defence to the claims.


The case is good news for employers and establishes that Tribunals will look into the reasonable belief of the employee and that this involves looking at the employee’s other actions outside of work and whether the employer took reasonable steps to maintain health and safety during the pandemic.