Case Study: Representing an Employee with Long Covid bringing claims of Disability Discrimination and Unfair Dismissal

How Christine Gannon, an expert Employment Law solicitor in Brighton, obtained a Settlement Agreement when representing a client in bringing claims of unfair dismissal and disability discrimination.

The situation

Tim had worked his way up from a warehouse assistant to a Purchasing Manager at a large wholesaler with branches throughout the country.  Tim had asthma but this was well-controlled and it had never impacted his work previously. Tim was physically active, attending the gym and running. Tim’s role was also physically active as he had to travel between sites and spend most of his time on his feet at warehouses and distribution centres.

Due to his asthma, Tim shielded during the first COVID lockdown as he was identified as CEV (Clinically Extremely Vulnerable). Prior to this, Tim experienced a succession of severe asthma attacks, which resulted in ongoing respiratory issues. Tim’s GP subsequently formed the view that Tim had caught COVID early in March 2020 and that his ongoing respiratory issues were Covid-related. In the summer of 2020, Tim was diagnosed with Long Covid.

Tim was subsequently signed off work with post-Covid symptoms and this remained the case until he was dismissed for ill health capability.

Prior to Tim’s dismissal, his employer went through their formal capability process, but this was not followed properly. Although Occupational Health (OH) Reports were obtained, these were not discussed in any detail with Tim.  Tim’s employer also did not properly consider ways that Tim could return to work.  In particular, they had not explored sedentary and/or work-from-home roles for Tim, whether as a temporary arrangement, until his symptoms improved, or as a permanent change.

Tim was eventually invited to a Final Ill Health Capability Meeting.  It was very short and a decision was reached without adjournment.  The latest OH report was not discussed and the dismissing manager admitted that he did not know much about Tim’s medical condition of Long Covid. The dismissing manager was unduly focussed on the fact that Tim could not return to his Purchasing Manager role and failed to consider what other options might be available to get him back to work or to wait until the outcome of Tim’s referral to the Long Covid clinic.

Tim was dismissed for ill health (capability).  Tim understandably raised an appeal against his dismissal.  This was not upheld but the Manager hearing the appeal did accept that the dismissing manager had not spoken to him about what short-term arrangements could be put in place to return him to work.

What Martin Searle Solicitors did

Tim came to us for help after he had received the outcome of his appeal.  We quickly identified that Tim’s claim had to be entered for ACAS early conciliation, as the time limit for bringing a claim arising from his dismissal was fast approaching.

We also assisted Tim with raising a formal grievance about disability discrimination and unfair treatment which his employer refused to deal with.  Tim’s employer was not prepared to settle the dispute during ACAS early conciliation.  We therefore prepared, finalised and issued an Employment Tribunal Claim of unfair dismissal and disability discrimination on behalf of Tim. This included discrimination arising from his disability and a failure to make reasonable adjustments.

Tim’s employer defended the claim and disputed that Tim was disabled for the purposes of the Equality Act 2010.  We prepared a disability impact statement explaining Tim’s condition, his symptoms and the substantial impact on his normal day-to-day activities.  Tim could now only walk short distances and became breathless climbing stairs or undertaking any physical exertion.

Tim’s employer conceded disability and shortly afterwards made settlement proposals.

The result

Tim was keen to move on and we were able to secure a settlement for Tim of approximately 6 month’s net pay (based on his full-time salary) of over £10,000.  This was a good outcome for Tim because if he had returned to work for his employer,  this would have been on a reduced hours/ part-time basis (likely to be at 50% of pay).

Tim had also been able to secure part-time work elsewhere and had decided to set up a business from home based on a previous hobby to help manage his recovery from Post-COVID syndrome.

For expert advice about about unfair dismissal or disability discrimination in the workplace, contact our Employment Law Team on 01273 609911, or email info@ms-solicitors.co.uk.