Christopher Zagorski v North West Anglia NHS Foundation Trust

For disability under Equality Act 2010, the assessment must focus on the activities which the person cannot do, or can do only with difficulty. Professional work may be a normal day-to-day activity. Recurrent migraine episodes can have a substantial adverse effect even though they do not occur every day.

Where behaviour modification may reduce an impairment’s effects, the tribunal should first assess the effects without the proposed modification. It must then make a reasoned finding, supported by a rational evidential basis, about the reduction likely to result. An impairment is not excluded because exhaustion may have contributed to it.

The claimant, a consultant radiologist, had migraines and exhaustion while carrying extensive caring responsibilities. He was absent from work from December 2021 until his resignation in July 2022.

The Employment Tribunal at Watford held that he was not disabled. It accepted migraine as an impairment but found that it did not have a substantial and long-term adverse effect on normal day-to-day activities. It relied in part on the view that the claimant could reasonably modify his lifestyle to reduce exhaustion and migraines.

The claimant appealed. The central issue was whether the Employment Tribunal had lawfully assessed the effect of recurrent migraines and the relevance of possible behaviour modification.

1. Appeal allowed. The Employment Tribunal erred in its assessment of disability under Equality Act 2010. A finding that the claimant was a disabled person at the material times was substituted.

2. The accepted migraine evidence described attacks occurring about twice weekly during which the claimant could not focus on screens, could not perform his work, was unsteady and needed to lie down, and at their worst could not read, write or use screens. Those effects concerned normal day-to-day activities. Such activities may include professional work: [2007] ICR 1522. On any view, those effects were substantial.

3. The fact that migraine attacks occurred intermittently did not preclude a substantial adverse effect. Nor could an absence of established substantial effects during a post-migraine phase alter the substantial effects during the attacks themselves.

4. The Employment Tribunal’s conclusion that lifestyle changes would prevent or reduce the effects was perverse. The claimant had already been absent from work for a substantial period, so that many suggested changes were in place, yet the medical evidence showed continuing migraines at a similar level. A tribunal considering possible behaviour modification should generally assess the impairment’s effects without the modification, then make a reasoned finding as to the likely change. It should consider whether remaining effects would still be more than minor or trivial.

5. The possible causal connection between exhaustion and migraine did not prevent migraine from being an impairment or from having substantial adverse effects. The failure to report the condition to the DVLA was a matter the Employment Tribunal could consider, but it could not affect the decisive conclusion on the accepted evidence.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and substituted a finding of disability: [2024] EAT 164.
• Employment Tribunal, Watford: On 2 May 2023, held that the claimant was not a disabled person. The decision was sent to the parties on 10 May 2023.