Ms K Phelan v Leeds City Council — 2022

The claimant, a social worker employed by Leeds City Council, contracted Covid-19 in January 2021 and was certified unfit for work by reason of long Covid from 14 April 2021. Under her contractual sick pay entitlement, linked to length of service, she received two months' full pay, two months' half pay, and no pay from 27 August 2021. The respondent conceded disability from June 2021 and knowledge from 23 March 2022.

The direct disability discrimination claim failed because the Tribunal found the pay treatment was due to sickness absence and length of service, not because of disability. It accepted evidence that another employee with long-term absence, whether from contact with infectious disease or another medical condition, would have been treated in the same way.

For discrimination arising from disability, the Tribunal accepted that reduced pay was unfavourable treatment because of sickness absence arising from disability. It found, however, that applying the sickness policy was a proportionate means of achieving the respondent's legitimate aims of requiring regular attendance and managing long-term sickness absence to safeguard public funds and plan workforce needs. The indirect discrimination claim failed for the same justification reasons, although the Tribunal accepted that the sick pay policy placed persons with long Covid at a particular disadvantage.

The unauthorised deduction from wages claim failed because the Tribunal found clause 10.9 of the NJC agreement did not cover indefinite long Covid absence. It held that the clause was intended to cover absence when an employee was potentially infectious, and that once absence continued beyond isolation or quarantine it was appropriate to manage it under the respondent's sickness policies.