The Question
Can migraines be classified as a disability within the provision of section 6 Equality Act 2010 (EA) even when possible lifestyle changes could help to reduce its impact on day-to-day activities?
The Answer
For a health issue to be considered as a disability under the (EA), the condition must be a physical and or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. Long term is where the condition has lasted or is likely to last for at least 12 months or it is likely to last for the rest of the person's life.
When determining matters on disability, there are government guidance notes headed (EA) Guidance on Matters to be taken into account in Determining Questions Relating to the Definition of Disability, and at paragraphs B(7) to B(10) of these guidance notes, it deals with matters such as the possibility of an individual modifying their behaviour to prevent or reduce the effects of an impairment on normal day-to-day activities.
The guidance notes as above do not impose any legal obligations in itself, nor is it an authoritative statement of the law, however, Schedule 1, Paragraph 12 to the (EA) requires that an adjudicating body which is determining for any purpose of the Act whether a person is a disabled person, must take into account any aspect of this guidance which appears to it to be relevant and thus a question arises whether an employment tribunal can consider how far a person can be reasonably expected to modify their behaviour to prevent or reduce the effects of an impairment on normal day-to-day activities for example using a coping or avoidance strategy.
In the case of Zagorski v North West Anglia NHS Foundation 2024, the employment appeal tribunal (EAT) held that an employee who worked as a consultant radiologist and suffered from regular migraines which continued even when he was off sick thus when he was away from work, had a disability under the (EA) after taking into account the employee’s disability impact statement and that the employment tribunal had been wrong to conclude that the employee suffered from no disability in that he was expected to modify his behaviour to prevent or reduce the effects of his impairment such as, based upon medical advice, in taking more rest to reduce his symptoms of feeling tired, run down and physically exhausted and seeking additional help for his caring responsibilities for his children and for his wife, who had suffered a serious injury when giving birth to triplets in 2015.
What You Need To Do
Although each case turns on its own facts, but the EAT decision suggests that employers need to careful in concluding that the longevity of an employee’s health issues is directly linked to the employee not making recommended lifestyle changes and thus detailed medical guidance would need to be obtained to assess matters, as where the employer gets the assessment wrong as to whether or not the employee has a disability, then they could be facing a substantial disability discrimination damages claim.
If you require any further assistance, please do not hesitate to contact our HR/Legal advice line team at 01455 852 028.
