The recent decision of the Employment and Equality Tribunal in Fenner v Manx Care is a cautionary tale of how an employee who could no longer work because of Long COVID came to be dismissed.

Miss Fenner is an experienced nurse, who started as a Community Nurse with Manx Care in 2021. About three months in, she caught COVID-19, which unfortunately turned into Long COVID. She had been employed for 634 days but had been signed off as sick for 534 days. In the later stage of the case, it was eventually agreed that she had become disabled within the meaning of the Equality Act 2017. The Equality Act made it possible for her to claim direct and/or indirect discrimination on the grounds of her disability.

The Tribunal found that Manx Care had done everything it could to offer reasonable adjustments, support for a phased return to work, and followed established policies and procedures. Occupational health reports determined that the nurse had become unfit for work in any capacity. On the specific facts, she was reasonably terminated on the grounds of capability.

On indirect discrimination, the question was whether the nurse was at a particular disadvantage because of her disability, as the staff policy meant that she was required to improve her absenteeism or potentially face dismissal. The tribunal accepted that any comparison must be made with another employee with Long COVID, and found that since the nurse was unable to show any other employee sharing the particular disadvantage of Long COVID, the nurse’s claim for indirect discrimination could not succeed. Further, the tribunal accepted that most other employees on long-term sick would face a similar disadvantage, namely, being at risk of dismissal.

In the particular circumstances and given the limited resources of the employer, the tribunal also said it would have concluded that the staff policy was a proportionate means of achieving the legitimate aims of Manx Care. These include protecting scarce public funds, ensuring the continuity and quality of patient care, effective management of staff and the effect of the absence on the team, and providing a consistent framework for managing capability concerns. Even if dismissal could be an unfavourable treatment, Manx Care had investigated other lesser alternatives to dismissal which were not workable for this nurse. It would not have been reasonable for Manx Care to allow her to stay on indefinite sick leave and not recruit to replace her headcount.

It is hard to say what would have happened if the nurse was able to find another staff on long term sick because of Long COVID. What’s clear in this case is that the burden is on the employee to prove indirect discrimination by drawing comparison with the right comparator.

On the other hand, where the fairness of a dismissal is being considered, the burden falls on the employer to show, and the tribunal will examine in detail, the fairness in both the decision made and the fairness in the decision-making process.

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Case referred: EET 2023/57 Fenner v Manx Care (07 March 2025)

Article “Fenner v Manx Care: Long-Term Sickness, Dismissal Based on Capability, and Indirect Discrimination” posted on 20 March 2025. Written by Chris Webb and Candy Chan