A recent decision from the Employment Appeal Tribunal (EAT) serves as a timely reminder that recurring health conditions should not be too quickly dismissed as routine sickness absence.
In Pal v Accenture (UK) Ltd, the EAT considered whether an employee suffering from endometriosis met the Equality Act 2010 definition of disability after the Employment Tribunal had concluded that she did not.
The case arose after an employee who suffered from endometriosis brought discrimination claims against her employer. A key issue in proceedings was whether her condition met the statutory definition of disability under the Equality Act 2010 (Equality Act).
The Employment Tribunal initially concluded that she was not disabled, however on appeal, the EAT found that the Tribunal had not properly applied the statutory test when assessing the impact of the condition and how it should be evaluated in circumstances where symptoms fluctuate. The case has been sent back for reconsideration, but the judgment contains useful guidance for employers on how the disability test should be approached where symptoms come and go.
Although the case centred on endometriosis, its relevance extends to any condition with episodic or fluctuating symptoms. The decision is a reminder that recurring absence may still engage the Equality Act and should not automatically be treated as routine sickness.
The legal reminder: how the disability test actually works
To be disabled under the Equality Act, a person must have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
The EAT reinforced three aspects of that test which employers frequently underestimate.
1. A fluctuating condition can still be long-term
An employee does not need to be unwell every day. Where symptoms recur over a period of 12 months or are likely to do so, the “long-term” requirement can be satisfied even if the employee is well between episodes. The fact that an employee is “fine most of the time” is therefore not determinative.
This is particularly relevant to conditions such as:
- endometriosis
- migraine disorders
- autoimmune conditions
- chronic fatigue conditions
2. The focus is functional impact — not the diagnosis
The legal question is not how serious the condition sounds medically. It is what the condition actually does to the person’s daily functioning.
Relevant effects may include:
- difficulty concentrating
- fatigue or reduced stamina
- mobility restrictions
- inability to sit or stand for long periods
- unreliable attendance
Importantly, “normal day-to-day activities” are not limited to activities outside work. Activities such as sitting at a workstation, focusing for prolonged periods or maintaining regular attendance can fall within the definition.
3. The assessment is made without treatment
The Tribunal must consider the employee as if medication or management strategies were not in place.
This means an employee who continues working only because of strong pain medication, hormonal treatment and/or coping strategies may still be legally disabled, even if their symptoms appear controlled in the workplace.
Why this matters for employers
The real impact of the case is on absence management and capability procedures.
Many employers still treat recurring short-term absences as a performance or attendance issue. The EAT’s decision is a reminder that, once a condition may fall within the Equality Act, the legal framework changes.
Before issuing warnings or progressing towards dismissal, employers should consider:
- whether they have sufficient medical evidence;
- whether the condition may meet the disability definition; and
- whether reasonable adjustments could reduce the disadvantage.
Knowledge is critical
The case also highlights the importance of what the employer knew — or reasonably ought to have known.
An employer does not need a formal declaration of disability. If they are aware of a diagnosed condition, and its impact on attendance or functioning, the duty to consider reasonable adjustments may arise.
Relying purely on attendance triggers, Bradford Factor scores or policy thresholds without investigating the underlying cause is likely to be risky.
Adjustments employers should think about
Adjustments will depend on the role, but may include:
- flexible start and finish times
- home working on flare-up days
- adjusted absence triggers
- additional breaks
- temporary reduction in duties
- phased return arrangements
The key is not whether adjustments guarantee perfect attendance, but whether they reasonably reduce the disadvantage caused by the condition.
The practical takeaway
This decision does not expand the Equality Act definition of disability. Instead, it is a clear warning about how Tribunals will analyse employer decision-making.
Where an employer proceeds directly from recurring absence to disciplinary action without understanding the medical position, it may be difficult to justify a warning or dismissal. In those circumstances, claims for failure to make reasonable adjustments and discrimination arising from disability are a real risk.
Employers should therefore consider treating recurring health-related absence as a potential disability issue first, and an attendance issue second.
For more information, please contact someone in the Employment Department. Alternatively, call us on 020 7465 4300.
This article featured in our Spring edition of ‘IN CASE’, our Employment newsletter for HR Directors.
