Long COVID and probation dismissal: why the DVLA's decision was lawful
A Customer Support Officer with long COVID and diabetes was dismissed after 8 months' absence. The tribunal rejected his disability discrimination claims, finding the DVLA acted reasonably.
1 min read · Last updated 19 May 2026
Case details
- #long-covid
- #diabetes
- #sickness-absence
- #probation-dismissal
- #occupational-health
- #special-leave
Key facts
- The claimant was employed as a Customer Support Officer from 12 October 2020 until 16 January 2022.
- He contracted COVID-19 and was absent from work from 4 November 2020, never returning.
- The claimant was disabled due to long COVID and diabetes during the material time.
- The respondent dismissed the claimant for failing probation after over 8 months of sickness absence.
- The claimant's claims of direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, and unauthorised deductions were all dismissed.
Timeline
-
Employment started
Claimant began work as a Customer Support Officer at DVLA.
-
Sickness absence began
Claimant contracted COVID-19 and started sick leave, never returning to work.
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Special leave discussed
Nia Davies told claimant he would be placed on special leave on full pay if fit to return.
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Special leave cancelled
Claimant was told special leave was cancelled and he was put back on sick leave.
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Second OH report
Occupational Health report noted diabetes likely a disability but long COVID unclear.
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Third OH report
Report suggested phased return and breaks, but return to work uncertain.
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Pay reduced to nil
Claimant's sick pay reduced to nil.
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Formal attendance meeting
Claimant attended meeting with Nia Harris; he said he was not yet fit to return.
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Dismissal decision
Respondent dismissed claimant for failing probation; claimant emailed same day saying GP cleared him to return.
-
Employment terminated
Effective date of termination.
The legal issue
The tribunal had to decide whether the DVLA discriminated against the claimant because of his disability (long COVID and diabetes) by failing to make reasonable adjustments, treating him unfavourably, or making unauthorised deductions from wages.
The outcome
The tribunal dismissed all claims of disability discrimination, including direct discrimination, discrimination arising from disability, failure to make reasonable adjustments, and unauthorised deductions.
The key reasons were:
- The DVLA had considered reasonable adjustments, such as special leave and phased return, but the claimant was never fit to return.
- The dismissal was due to the claimant's inability to pass probation, not because of disability.
- The reduction in sick pay was lawful under the contract.
No compensation was awarded as all claims failed.
Lessons & takeaways
- Employers can dismiss employees on probation after long sickness absence if they have considered reasonable adjustments and the employee cannot return to work.
- Having less than two years' service means you cannot bring an unfair dismissal claim, but you may still have disability discrimination claims.
- Occupational health reports are important evidence; employers should follow their recommendations where possible.
- Special leave on full pay is a reasonable adjustment, but it can be withdrawn if the employee remains unfit to work.
- A reduction in sick pay is not an unauthorised deduction if it follows the contractual sick pay scheme.
This case shows the limits of disability protection when an employee is unable to return to work for a prolonged period. The claimant, a Customer Support Officer, contracted COVID-19 in November 2020 and never returned. After over eight months of absence, the DVLA dismissed him for failing probation. The tribunal accepted that the claimant was disabled due to long COVID and diabetes, but found that the DVLA had acted reasonably throughout.
What the DVLA did right
The DVLA obtained three occupational health reports, offered special leave on full pay (though later withdrawn), and considered a phased return. The tribunal noted that the claimant was never fit to return, even after his GP cleared him on the day of dismissal. The employer had explored alternatives but none were viable. The dismissal was not because of disability, but because the claimant could not complete his probation.
Why the claims failed
The tribunal rejected the claim that being asked to go on special leave was direct discrimination, as it was a supportive measure. The unfavourable treatment claims (delayed replies, refusal of alternative roles, dismissal) were not caused by disability but by the claimant's absence and the employer's processes. The reasonable adjustments claim failed because the DVLA had already considered and implemented appropriate adjustments. The unauthorised deductions claim failed because the reduction in sick pay followed the contractual scheme.
What this means for similar claims
Employees with long COVID may be disabled, but that does not prevent dismissal if they cannot perform their role after reasonable adjustments. Employers should document their decision-making and obtain medical advice. For employees, the key takeaway is that discrimination claims require proof that the employer's actions were because of disability, not just the consequences of absence. Without that link, even a sympathetic case can fail.
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