Migraine, the Workplace, and the Law - 2011
People with migraine will often have to take time off work due to an attack. David Cubitt, Head of Employment Law, Osborne Clarke, looks at the key barriers for migraine sufferers in the workplace, what migraine sufferers can do to overcome those disadvantages and whether sufferers are protected by employment legislation.
The main workplace barriers include a lack of awareness and understanding of the condition. People may consider that it is ‘just a headache’ and that sufferers are not really ill. Unfortunately, this has not been helped by non-sufferers using migraine as an excuse when they want to take a day’s ‘sickie’ from work.
Many migraineurs are fearful for their employment and feel isolated. This may be because the employer operates a strict absence record system which places people on a performance monitoring system once they have been off work due to sickness for a specified number of days. Rather than helping the situation, this often only increases the sufferer’s anxiety and exacerbates the problem by acting as a trigger.
Another barrier is the working environment itself, ranging from the organisation of the work space, IT equipment, lighting and the ability to take a break. Each of these aspects can be a significant factor in whether an attack occurs.
One practical step to overcome these barriers is for migraine sufferers to communicate with their employer. This can range from an informal discussion about the nature of the condition to providing the employer with a formal diagnosis from their GP or consultant. One of the main messages to get across is the episodic nature of migraines – that whilst some sufferers may have a migraine only once or twice a year, others may have it two or three times a week. In serious cases, the latter route (formal diagnosis) is the best. Sufferers can provide their employer with medical confirmation that they do suffer from migraines, that this may amount to a disability (see below) and that they would like to work with the employer to make reasonable adjustments to their working environment and practices to reduce the impact of their migraine on their work. There is a range of legal protections open to migraine sufferers. This may include following the employer’s procedure to ensure payment of sick pay (there may even be private medical assistance available), through raising a grievance if the sufferer considers that they are receiving unfair treatment or they are being picked on, to formal legal proceedings such as unfair dismissal or disability discrimination. This note will look briefly at both unfair dismissal rights and disability discrimination.
Whilst employers can dismiss employees who do not have a satisfactory attendance level, there are many obligations on an employer to act reasonably in following a fair procedure before dismissing an employee. This will include the provision of support and assistance to migraine sufferers as part of the dismissal process. Migraine sufferers should seek independent legal advice if they have been dismissed due to their migraine related absence.
One main legal avenue to check out is disability discrimination. A person will be classified as disabled for the purposes of the law if that person has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on that person’s ability to carry out normal day-to-day activities.
This is judged on a case by case basis, with the determining feature normally depending on the frequency and impact of migraines on a sufferer's day to day activities. If a person suffers from a migraine attack once a year, they are unlikely to be classified as disabled for the purposes of the legislation, whereas someone with weekly attacks will be. The key issue is not the impairment but its effect.
Disability discrimination protects people against discrimination arising from their disability. This could protect a migraine sufferer who has been dismissed because they were unable to attend work regularly.
The person has received unfavourable treatment because of something arising in consequence of the disability. In this event, the employer may be found to have discriminated against the migraine sufferer unless the employer can show dismissal to be a proportionate means of achieving a legitimate aim. In other words they need to justify the decision to dismiss the employee for poor attendance on objective grounds.
Another key protection is that employers must take reasonable steps where 1) a provision, criterion or practice, 2) any physical feature of work premises, or 3) the absence of an auxiliary aid (or service) puts a disabled person at a substantial disadvantage. Many questions are raised by this positive obligation on an employer, including what is reasonable, whether the adjustment would be effective, the cost and the type of the adjustment and size of the employer. It could include adjustments to the working environment (such as the organisation of the office and workspaces, IT equipment, computer screens, lighting and ventilation) and changes to working practices (such as flexible working hours, flexible location, frequent breaks, stress management, changes to absence policies, redeployment opportunities, provision of management training and the provision of a rest room).
Since October 2010, the Equality Act has made it unlawful for employers to ask job applicants health or disability-related questions before making offers of employment (and before short listing them) except in limited circumstances. The aim is to reduce the risk of people with disabilities being put off applying for jobs and to avoid them being discriminated against in the selection process. However, the Equality Act does not make it unlawful for employers to make job offers conditional on satisfactory responses to questionnaires or health checks. Consequently, employers can continue to make a job offer conditional on satisfactory health checks providing that these are relevant to the job and reasonable adjustments are made for disabled applicants.
In summary, migraine sufferers are advised to speak to their employers (and their fellow workers) about their migraine and its likely effect on their work. The aim is to increase understanding in order to obtain support from their employer. It may be that, in some cases, a letter from the consultant, setting out the episodic nature of migraine and also suggesting adjustments to the working place, would be a positive and necessary step. The letter could also set out reasonable adjustments that could be considered by the employer, related to the individual's specific triggers.
For example, it could be a reasonable adjustment for a migraine sufferer to be given some latitude on attendance monitoring and/or to be allowed to work from home in periods both before and after an attack.
There is protection available to migraine sufferers, principally from disability discrimination law. The key is to use the law to reach agreement with employers about getting support for migraine sufferers in the workplace and the first step in that is always communication and understanding.