In this case the Employment Appeal Tribunal (EAT) held that an employee who suffered from regular migraines was disabled for the purposes of the Equality Act 2010 (EqA). The employment tribunal had been wrong to conclude otherwise on the basis that the employee could have been expected to modify his behaviour to prevent or reduce the effects of his impairment.
Background
Under the EqA, 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, or it is likely to last for the rest of the person's life. 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 take into account 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.
Facts
Mr Zagorski began working for North West Anglia NHS Foundation Trust (the Trust) as a consultant radiologist in October 2019, working three days a week. He had substantial caring responsibilities for his children and for his wife, who had suffered a serious injury when giving birth to triplets in 2015. In August 2021, Mr Zagorski relocated to Surrey to be closer to his family so that they could assist with care for his wife and children. However, this substantially increased the length of his commute to work (from approximately 35 minutes to between 2.5 and 3 hours each way).
Mr Zagorski began suffering from headaches and excessive tiredness in December 2019. An MRI scan undertaken in early 2020 was normal, but Mr Zagorski continued to suffer from migraine headaches and the medication he was prescribed was not proving effective. On 7 December 2021, Mr Zagorski commenced a period of sick leave. His fit notes and GP records indicated that, during his sick leave, he continued to suffer from migraines approximately twice a week. He attended occasional work meetings whilst off sick, but remained on sick leave until his resignation in July 2022.
Following his resignation, Mr Zagorski brought employment tribunal claims for constructive unfair dismissal, discrimination arising from disability, failure to make reasonable adjustments and whistleblowing detriment. At a preliminary hearing, the tribunal held that Mr Zagorski was not disabled for the purposes of the EqA, concluding that his exhaustion and debility did not amount to an impairment and that the effect of his migraines on his ability to conduct day-to-day activities was not substantial. Mr Zagorski appealed.
The EAT overturned the tribunal's decision and substituted a finding that Mr Zagorski's migraines did meet the definition of a disability under the EqA. The EAT noted that much of Mr Zagorski's role as a consultant radiologist required him to use screens to interpret scans, and that when he had a migraine he could not focus on a computer screen, he was unsteady on his feet and would need to lie down and, when the symptoms were severe, he could not read, write or use screens at all. Accordingly, and since the tribunal had accepted Mr Zagorski's evidence that he continued to suffer migraines approximately twice a week, it was clear that there was a substantial adverse effect on Mr Zagorski's ability to carry out day-to-day activities.
The EAT also disagreed with the tribunal's finding that Mr Zagorski could reasonably have been expected to modify his behaviour (by seeking additional help for his caring responsibilities, getting more rest, etc.) to prevent or reduce the effects of his migraines. During his sickness absence, such modifications had, in large part, been in effect, but Mr Zagorski's migraines had continued at a similar level. The tribunal's decision that by modifying his behaviour Mr Zagorski could have prevented or substantially reduced the effect of his migraines was therefore perverse.
What this means for employers
This case provides a useful reminder of the approach to determining whether an employee's medical condition amounts to a disability under the EqA, and the limits of the statutory guidance that employees can reasonably be expected to modify their behaviour to prevent or reduce the impact of their disability. On this issue, the EAT specified that in assessing the effect that modifications to behaviour might have, the tribunal should generally consider the effect of the impairment on day-to-day activities without the modification, and reach a reasoned conclusion as to the change that would occur if the behaviour was modified, i.e. whether day-to-day activities would still be affected and, if so, whether they would be affected to a degree that is more than minor or trivial.
It also demonstrates that impairments with fluctuating or recurring effects can amount to a disability; as the EAT noted, the fact that there were more periods when Mr Zagorski did not have a migraine than periods when he did have one did not prevent there being a substantial adverse effect on day-to-day activities.
With this in mind, employers should take a cautious approach to managing employees whose sickness absence is linked to a recurring medical condition and be proactive in finding out about the medical condition and the effect it may have on them. In the meantime they should assume that the employee would meet the EqA definition of disability and treat them accordingly, in particular when considering any potential reasonable adjustments.
