It will likely be an issue for employers when ‘migraine’ is the reason for employee absence and whether this means the affected employee meets the statutory definition of a disabled person.
This week is National Migraine Week. According to the Migraine Trust, it is a “complex condition with a wide variety of symptoms”. For many people the main feature is a painful headache. Other symptoms include disturbed vision, sensitivity to light, sound and smells, feeling sick and vomiting.
As per the Disability Discrimination Act 1995, a person is disabled if “he has a physical or mental impairment which has a substantial and long term adverse impact on his ability to carry out normal day to day activities.”
Day to day activities, although not precisely defined, can include work-related activities. If the sufferer can establish that migraine has a substantial and long term adverse impact, this will likely mean that the employee is disabled and the employer may have a duty to take affirmative steps with regards:
a. a policy, criterion, or practice in the workplace;
b. adaptation of a physical feature in the workplace; and/or
c. provision of an auxiliary aid to avoid any substantial disadvantage the employee may suffer in comparison with persons who are not disabled. Failure on the part of the employer to comply with this duty, if it arises, amounts to an unlawful act of discrimination.
Common adjustments for those who suffer from migraines and are disabled can be:
Another, frequently raised adjustment can be disregarding some or all absence related to the employee’s disability when managing absence. The Court of Appeal in Griffiths v The Secretary of State for Work and Pensions  EWCA Civ 1265 stated:
“…An employer is entitled to say, after a pattern of illness absence, that he should not be expected to have to accommodate the employee’s absences any longer. There is nothing unreasonable…in the employer being entitled to have regard to the whole of the employee’s absence record when making that decision…(However) the fact that some of the absence is disability related is still highly relevant to the question of whether disciplinary action is appropriate.” (emphasis added)
In the Griffiths case, the Court of Appeal determined that the initial Employment Tribunal was entitled to find that two proposed adjustments (being that a lengthy absence of 62 days not be treated as absence counting against the employee and that the employer’s absence management policy be modified to allow the employee longer periods of absence in the future before subjecting the employee to the possibility of a sanction) were not steps that the employer could reasonably be expected to take because taking them would not remove the disadvantage suffered by the employee. Medical evidence was available which confirmed that the employee would likely have further periods of lengthy absence, so it was not reasonable to expect the employer to discount the 62 day period of absence in the circumstances.
Whether it is reasonable for an employer to amend its absence management policy or disregard disability related absences will always depend on the facts of each case and legal advice should always be sought in this regard.
Toni Fitzgerald-Gunn is a Solicitor in Worthingtons Commercial Solicitors, Belfast, where she specialises in Employment Law and can be contacted on 028 9043 4015
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