Chronic migraine dismissal: employer not liable despite disability finding
A smart meter installer with chronic migraines was dismissed after three months' absence. The tribunal found he was disabled but that the employer acted reasonably and did not discriminate.
1 min read · Last updated 18 May 2026
Case details
- #chronic-migraine
- #disability-status
- #sickness-absence-policy
- #reasonable-adjustments
- #phased-return-to-work
- #victimisation
Key facts
- The claimant had chronic migraines since at least 2008, which the tribunal found to be a disability.
- The claimant was absent from work from 30 October 2020 due to migraines and stress.
- The respondent dismissed the claimant on 3 February 2021 on grounds of ill-health capability.
- The tribunal found the respondent did not know of the disability until 23 December 2020.
- The claimant's counter-proposal for a phased return was rejected as not financially sustainable.
- All claims of disability discrimination, harassment, victimisation, and unfair dismissal were dismissed.
Timeline
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Employment started
Claimant began work as a Smart Meter Installer.
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Holiday request refused
Rota management refused claimant's leave request due to manpower issues.
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Massage parlour comment
Mr Nicolaou commented that the claimant's appointment looked like a massage parlour.
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Written warning issued
Claimant received a written warning under the capability process for absences.
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Sickness absence began
Claimant went off sick with migraines and stress at work.
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Occupational Health report
OH report stated claimant probably disabled; GP report also said disabled.
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Respondent knew of disability
Tribunal found respondent had knowledge of disability from this date.
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Invitation to capability hearing
Claimant invited to formal capability hearing due to long-term absence.
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Dismissal
Claimant dismissed on grounds of ill-health capability.
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Appeal dismissed
Appeal against dismissal rejected by independent chair.
The legal issue
The tribunal had to decide whether the claimant's chronic migraines amounted to a disability under the Equality Act 2010, and if so, whether the respondent's actions – including refusing a phased return to work and dismissing on capability grounds – amounted to unlawful discrimination, harassment, victimisation, or unfair dismissal.
The outcome
The tribunal found that the claimant was disabled due to chronic migraines from at least October 2020. However, the respondent only became aware of the disability on 23 December 2020, after which it acted reasonably.
Key reasons:
- The respondent did not know of the disability when it issued a written warning or when the claimant went off sick.
- The claimant's counter-proposal for a phased return was rejected as not financially sustainable, which was a reasonable business decision.
- The dismissal on capability grounds was fair, as the claimant had been absent for over three months with no clear return date.
No compensation was awarded as all claims were dismissed.
Lessons & takeaways
- Employers are not liable for actions taken before they know about an employee's disability, but must consider reasonable adjustments once they do.
- A phased return to work can be a reasonable adjustment, but employers can reject it if it is not financially viable, provided they have a good reason.
- Short service (under 2 years) limits unfair dismissal claims, but disability discrimination claims can still be brought regardless of service length.
- Chronic conditions like migraines can be disabilities if they have a substantial and long-term adverse effect on daily activities.
When a disability finding doesn't guarantee a win
This case shows that even when an employee is found to be disabled, their employer may still avoid liability if they acted reasonably and without knowledge of the disability at key points.
The claimant, a smart meter installer with 11 months' service, had suffered from chronic migraines since 2008. He went off sick in October 2020 after a dispute over holiday leave and a written warning for absence. The employer dismissed him in February 2021 on capability grounds after three months' absence, rejecting his proposal for a phased return as too costly.
What the tribunal decided
The tribunal accepted that the claimant's migraines were a disability. However, it found that the employer did not know about the disability until 23 December 2020 – after the written warning and the start of the sickness absence. Once aware, the employer obtained an occupational health report and considered adjustments, but the proposed phased return was not financially viable for a short-service employee.
The tribunal held that the dismissal was fair and that there was no discrimination, harassment, or victimisation. The employer had acted within the range of reasonable responses, and the rejection of the phased return was a genuine business decision.
What this means for similar claims
This case is a reminder that disability status is not enough – the employee must also show that the employer knew or ought to have known about the disability and failed to make reasonable adjustments. Short service also weakens unfair dismissal claims, as the employer's duty to consider alternatives is less extensive. Employees with chronic conditions should ensure their employer is fully informed of their disability and any necessary adjustments as early as possible.
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