Dear Myles,
One of my employees has repeated absences due to migraines, and it’s having a significant impact on my team and its productivity. I’m considering disciplinary action, but I’m worried about whether migraines could be considered a disability under the Equality Act. How can I ensure we address this issue fairly while avoiding any legal issues?
Dear Concerned Employer,
Thank you for your question. It’s crucial to tread carefully in this situation to ensure fairness while avoiding the risk of a potential disability discrimination claim under the Equality Act 2010. Let’s break down this issue step by step so you can feel more confident moving forward…
Understanding Disability under the Equality Act
The Equality Act defines a disability as a physical or mental impairment that has substantial and long-term adverse effects on a person’s ability to carry out their day-to-day activities. A condition is considered long-term if it has lasted – or is likely to last, 12 months or more.
When assessing whether migraines could be classed as a disability, it’s important to focus on the impact rather than the condition itself. Key considerations include the frequency and severity of the episodes, their effect on the employee’s ability to work, and how they interfere with daily life. It’s often not as clear-cut as it seems, so the focus needs to stay on impact, rather than diagnosis.
Tribunals have previously ruled that conditions like migraines can be classed as a disability if they meet these criteria. Notably, the expectation for an employee to adopt lifestyle changes, such as rest and stress management, may not negate the significant impact of their condition. Employers should therefore avoid making assumptions about what the employee can do differently without obtaining robust medical advice.
Your Obligations as an Employer
Before considering disciplinary action, you must first assess whether the employee’s migraines meet the definition of a disability. Here are some steps you can take to approach this fairly…
1. Obtain Medical Evidence: Arrange an Occupational Health (OH) assessment or request a medical report. This will help you in understanding the impact of the condition on the employee’s daily life, as well as their ability to perform their role.
2. Review Reasonable Adjustments: If the condition qualifies as a disability, you’re legally required to consider reasonable adjustments. These might include changes to workload, additional breaks, or other flexible working arrangements.
3. Follow a Fair Process: Ensure your absence management and disciplinary policies are followed consistently. Document every step of the process, and make sure your actions are proportionate and justifiable.
It’s all about fairness and consistency. If you follow these steps, you’ll be in a far stronger position to avoid legal problems down the line.
What are the Risks of Getting It Wrong?
If the worker’s migraines are found to be a disability, any failure to make reasonable adjustments or attempts to discipline them without thorough consideration, could lead to potential claims of disability discrimination. These claims can result in substantial financial and reputational issues for your business.
Tribunals tend to take a dim view of employers who disregard medical evidence or fail to properly consider the employee’s circumstances. Being proactive and informed is the best way to mitigate this risk.
Seek Professional Support Where Necessary
Disciplinary action should always be a last resort, especially when dealing with potential health-related absences. If you’re unsure whether a condition qualifies as a disability or need guidance on managing the investigation process fairly, seeking expert HR or legal advice is essential.
If you require additional assistance with these matters, remember that as a valued member of Staffordshire Chamber, you have FREE access to expert advice through the Chamber HR & Legal Advice Line on 01455 852 037.
Additionally, you can book a complimentary, no-obligation One2One Business Review with an HR Business Support Manager. This valuable benefit, also included in your membership, will help you address challenges like this while staying compliant and supporting your team effectively.
