EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4112457/2021 Held via Cloud Video Platform (CVP) on April 2022 Employment Judge J D Young Mr T Burke v Represented by:10 Ms McKillen assisted by Ms Walker - Student Advisers Turning Point Scotland — 2022

The judgment was a preliminary issue decision on disability status. The claimant, Mr T Burke, had worked for Turning Point Scotland since 2001 and was dismissed on 13 August 2021 on grounds of ill health after a COVID-19 infection in November 2020. The respondent accepted that he had a physical impairment from 25 November 2020 to 16 June 2021, but disputed that he remained disabled thereafter.

The tribunal heard evidence from the claimant and his daughter, Tressa Burke, and considered GP records, fit notes, and two occupational health reports. The claimant said that after the isolation period he developed severe fatigue, headaches, joint pain, sleep disturbance, concentration problems, and difficulty carrying out ordinary domestic and social activities. The occupational health reports of 27 April 2021 and 16 June 2021 concluded that he was fit to return to work and that it was unlikely the Equality Act disability provisions would apply, but the tribunal preferred the claimant's and his daughter's evidence, noting the limited face-to-face GP contact during the period, the fluctuating nature of the symptoms, and the 16 July 2021 GP note recording post-viral fatigue syndrome.

Applying the section 6 Equality Act 2010 definition and the Schedule 1 provisions on long-term effect, the tribunal found that the claimant's post-viral fatigue syndrome or long COVID had a substantial adverse effect on normal day-to-day activities and that, as at 13 August 2021, it could well have lasted for at least 12 months. The tribunal therefore held that the claimant was a disabled person between 25 November 2020 and 13 August 2021, including during the period relevant to the alleged discriminatory acts.

The judgment did not determine liability for the underlying unfair dismissal, age discrimination, or redundancy payment claims, and it did not award any remedy.