Background
The claimant in Zagorski v North West Anglia NHS Foundation Trust was a consultant radiologist. He had significant caring responsibilities for his wife and children, and a move closer to their family for help with support for them meant a 2 ½ to 3 hour commute each way to work. After only 2 months on the job, in December 2019, the claimant started suffering headaches and excessive tiredness. The claimant continued to suffer with headaches and medication prescribed for them proved ineffective. He started a period of sick leave in December 2021, and remained off sick until he resigned in July 2022. He then brought claims for unfair constructive dismissal, disability discrimination and whistleblowing detriment.
At a preliminary hearing it was concluded the claimant was not a disabled person for the purposes of the Equality Act 2010 ("the Act"). The tribunal found that the claimant's exhaustion and debility did not amount to an impairment, and the effect of his migraines did not have a substantial and adverse impact on his ability to carry out normal day-to-day activities. It also found that the claimant could have reasonably been expected to modify his behaviour to prevent or reduce the effects of a migraine - this included seeking additional help with caring responsibilities and getting more rest. The claimant appealed.
EAT judgment
The employment appeal tribunal ("EAT") disagreed with the employment tribunal, substituting a finding that the claimant's migraines did meet the definition of a disability under the Act. The evidence before the tribunal was that the claimant's migraines happened approximately twice a week and could prevent him from being able to read, write or use computer screens, he could become unsteady on his feet and need to lie down. The EAT found that the evidence on the impact that the migraines had on the claimant's day to day life showed "on any view" a substantial adverse effect. The EAT also concluded that, given the continuing migraines while the claimant was on sick leave, modification of the claimant's behaviour would not have prevented the migraines. The employment tribunal's finding to the contrary was perverse. The employment tribunal using the fact that exhaustion was a cause of the migraines as reason why the claimant was not disabled was also perverse.
What does this mean for employers?
This judgment is of interest for a number of reasons. Firstly, it relates to what can be described as a "fluctuating condition". In the original employment tribunal judgment, which found the claimant not to be disabled, reference had been made to the fact that evidence showed there were more periods when the claimant did not have a migraine than when he did. Fluctuating conditions such as long-Covid can, in earlier stages of infection at least, make assessing disability difficult. However, the EAT made clear in this case that the fact that the claimant was headache free more than he had a headache did not prevent there being a substantial adverse effect on day-to-day activities. When dealing with an employee suffering from a condition of this nature employers should consider taking a cautious approach, assuming disability and working with the employee to put reasonable adjustments in place.
The case is also a helpful reminder that when assessing disability status, tribunals can take into account how far a person can reasonably be expected to modify their behaviour. It made no difference in this case, but in some circumstances behavioural modifications may reduce the effect of an impairment to the extent that it is no longer considered substantial so a claimant would not then meet the definition of a disabled person under the Act.
And finally, headaches (including migraines) are common. While in many cases they would not have the necessary impact on day-to-day activities, it is important that employers do not make assumptions about what will or will not render a worker disabled under the Act.
