When migraines become a disability: key takeaways for employers

The Employment Appeal Tribunal (EAT) has held that an employee who suffered from regular migraines was disabled for the purposes of the Equality Act 2010.

Mr Zagorksi was a consultant radiographer who was required to spend long hours at a computer screen interpreting scans. When his migraines struck he could not focus on the screen, had trouble standing and sometimes could not read, write or view a screen at all. He experienced sensitivity to sound and light and – at its worst- he experienced total loss of vision. However, he had moved to be closer to family and regularly undertook a commute that could take up to three hours one way. The ET, at first level, was persuaded that he could modify his lifestyle to reduce his migraines and thus did not fall within the definition of disabled.

Under the Equality Act, a person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The effect of an impairment is considered “long-term” if it has lasted or is likely to last for at least 12 months. The term “substantial” is further defined as meaning “more than minor or trivial”, and case law has established that “normal day-to-day activities” include work activities.

The statutory guidance on matters that tribunals must consider when determining questions of disability notes that account should be taken of how far a person can reasonably be expected to modify their behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. This could potentially be to the point where the effects of the impairment are no longer substantial, and the person no longer meets the definition of disability. However, the EAT found that the ET had been wrong in this case to suggest that the Claimant could manage his migraines to such an extent that they did not amount to a disability.

This is an interesting case that teaches us about the complexities of assessing the impact of modifications (as explained above), but it also tells us something important about conditions that fluctuate and can often not be present. Mr Zagorski was prone to one or two migraines a week. The EAT confirmed in this case that, even though he spent more time free of the symptoms than he did suffering from them, he still experienced a substantial effect on his day-to-day activities and thus met the definition of having a disability.

Recurring conditions such as migraines are common, and employers would be wise to focus on obtaining information through an OH referral and considering what adjustments might be necessary to comply with their legal duties. Just because an employee does not suffer from symptoms all the time does not mean they are not afforded protection.

Please note that this information is for general guidance only and should not substitute professional legal advice. If you have specific concerns, we recommend consulting one of our legal experts.