Legal Rights of Migraineurs

AN INVESTIGATION INTO THE POTENTIAL FOR MIGRAINEURS TO BE PROTECTED BY EMPLOYMENT LAWS IN THE EUROPEAN UNION

Dr Caoimhin MacMaolain, Director of Research at the Law Department, TCD
LEGAL RIGHTS OF MIGRAINEURS

Introduction

Migraine is a disorder. It triggers episodic disabling bouts of headache and/or nausea. It can also induce vomiting and intolerance to normal levels of light and/or sound. The frequency of these attacks varies between sufferers. They can be very regular, occurring almost daily, or they can be occasional, happening once or twice a month or only a couple of times per year. The intensity of migraine attacks can also vary, from mild to severe. They are, however, usually debilitating, preventing the migraineur from carrying out daily functions in a normal way. Attacks tend to affect the ability to work or to interact with others effectively. It is usually necessary for the sufferer to take medication to relieve the symptoms. It may also be necessary for him or her to alter their environment in some way, to relieve the pain and illness associated with migraine. This can involve changing physical position – perhaps lying down, darkening the room and reducing noise volumes.

As with most ailments, prevention is better than cure. Those susceptible to migraine attacks can take a number of measures to minimise the possibility of these occurring. Diet, sleep and physical environment or conditions, such as light strength, noise levels, stress and body position, can all be adapted to reduce the frequency with which migraine can occur. However, many attacks can not be avoided and will occur regardless.

Migraine affects a very significant proportion of the population, and consequently a large percentage of the workforce also. According to the World Health Organisation, migraine is the nineteenth among all causes of years lived with disability. European and American studies have shown that 6-8% of men and 15-18% of women experience migraine each year. Headache disorders, such as migraine, tend to be most troublesome in the sufferer’s most productive years (late teens to early fifties). Migraine, therefore, also imposes a financial cost to society from lost working hours and reduced levels of productivity. In the United Kingdom, for example, it is estimated that 25 million working days are lost each year to migraine (WHO, Headache Disorders, Fact Sheet No.277). The European Headache Alliance estimates that migraine costs the European economy €27 billion annually in reduced productivity and lost work days. Employment laws must therefore protect those who are temporarily unable to carry out work while suffering the symptoms of migraine.They must also be devised and applied in a way that reduces the impact of this disorder on the economy.

European Union and Employment Law

The majority on new employment laws protecting workers now come directly from developments at European Union level. Article 151 of the Treaty on the Functioning of the European Union (TFEU) provides that:

[t]o this end [the] Union and the Member States […] shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.

Article 153(1) TFEU further provides that:

[w]ith a view to achieving the objectives of Article 151, the Union shall support and complement the activities of the Member States in the following fields:

(a) improvement in particular of the working environment to protect workers’ health and safety;

(b) working conditions; [and]

(e) the information and consultation of workers.

There are, therefore, certain minimum legal guarantees set out in the Treaty that measures will be devised and implemented that protect workers in their employment. This includes, quite specifically, the maintenance and improvement of working conditions and environment, and consultation with employees on this. It also accounts for standards designed to eliminate exclusion, on whatever grounds, from the workforce. The legal basis for introducing legislation in these areas is provided for by Article 153(2) TFEU, which sates that:

[the] European Parliament and the Council […] may adopt […] by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States.

However, it is also accepted, in the terms of Article 153(2) TFEU, that ‘[s]uch directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings’.

Equal Treatment Directive

The directives referred to in Article 153(2) TFEU now include the revised Equal Treatment Directive 2000/78/EC, which entered into force in December 2000. This legislation makes it clear from the outset that applying the principle of equal treatment in employment matters is necessary for the protection of:

[…] liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to all Member States and [respect for] fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, as general principle of [Union] law. (Preamble, recital 1).

Traditionally, the principle of equal treatment in European Union law has been primarily concerned with eliminating discrimination between men and women. The predecessor to this 2000 directive, Directive 1976/207/EEC, dealt extensively with the implementation of the principle of equal treatment between the sexes, as regards access to employment, vocational training and promotion, and working conditions. However, as EU law has developed, so too has legislative recognition that other forms of discrimination exist in the workplace. These are now accounted for in Directive 2000/78/EC, which extends anti-discrimination rules to include that which is based on religion or belief, age, sexual orientation or, most significantly for chronic migraine sufferers, disability. While suffering from migraine should not be considered a ‘disability’ as such, there are occasions where attacks may lead to symptoms that temporarily ‘disable’ the migraineur. When this happens, aspects of the relevant employment legislation should be applied to accommodate and protect the sufferer.

Defining ‘disability’ in EU and MemberState law

Before it can be established that the protections set out in the Equal Treatment Directive apply to migraineurs, it must first be ascertained as to whether or not chronic migraine can be considered a ‘disability’ under the law. The Equal Treatment Directive does not contain any definition of ‘disability’. Nor does it state what is meant by discrimination ‘on the grounds of disability’. Until the European Court of Justice or the legislative institutions set these definitions, it is really up to each individual MemberState to determine who will be covered by the disability provisions of Directive 2000/78/EC. However, many EU Member States have also failed to provide an adequate definition of ‘disability’. Where such definitions do exist, however, they generally make reference to physical, mental or psychological impairments, with reference to capacity to work.

Irish law

In Irish legislation, ‘disability’ is defined as:

[…] the total or partial absence of a person’s bodily or mental functions, including the absence of part of a person’s body, the presence in the body of organisms causing, or likely to cause, chronic disease or illness, the malfunction, malformation or disfigurement of a part of a person’s body, a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person. (Employment Equality Acts 1998-2004, Section 2.1).

While Irish legislation makes no reference to chronic illness or temporary sickness, the equality authorities make it clear that the provision relating to disability must be given a broad definition and scope of application. For example, frequent periods of sick leave can, in some circumstances, and depending on the nature of the illness, illustrate that the sufferer has a ‘disability’ for the purposes of the Equality Acts (Fernandez v Cable and Wireless, DEC-E/2001/052). Both asthma and irritable bowel syndrome have been held to be disabilities on the basis that they are ‘malfunctions … of a part of a person’s body’ (Civil Servant v Office of Civil Service and Local Appointments Commission, DEC-E/2004/029). It is this part of the definition of disability that is most relevant for migraine sufferers, explaining why the emphasis has been added to this section in the extract above.

It is clear, therefore, that interpretations of Irish legislation on employment equality provide a broad categorisation of the term ‘disability’, extending it to include sickness and illness that cause, even on a temporary basis, a malfunctioning of a part of the body – as is the case for migraine.

English law and other Member States

In English law, disability exists where:

[a] person […] has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on [the person’s] ability to carry out normal day-to-day activities. (Equality Act 2010, Section 6.1).

Similarly, under the terms of the Disability Discrimination Act 1995, as amended in 2005, a person would be deemed to have a disability if:

[…] he has a physical or mental impairment which has a substantial and long-term effect on his ability to carry our normal day-to-day activities. (Section 1.1).

The effect of the impairment is ‘long-term’ if it lasts, or is expected to last, at least twelve months (Schedule 1). The impairment is deemed to affect the ability of the person concerned to carry out normal day-to-day activities if it affects any of the following: mobility; physical co-ordination; ability to lift or carry; speech, hearing or eyesight; or ability to concentrate (Schedule 1).

These standards set out in English Law for determining disability involve assessments of fact. The presence of a disability must, therefore, be established on the basis of medical proof in order to invoke the relevant provisions and protections. It is not necessarily the impairment, therefore, that is the determining factor in ascertaining disability. It is the actual effect on the individual. Migraine can therefore count as a disability under English Law if the adverse effect on the individual concerned is substantial and long-term, affecting them in carrying out normal day-to-day activities.

In other EU Member States there may be a case of disability discrimination if it relates to a person’s health (Hungarian Act on Equal Treatment and on Fostering Equal Opportunities 2003) or reduced capacity to work or chronic illness (Portuguese Labour Code, Article 23.1).

European Court of Justice interpretation

The European Court of Justice has been more restrictive than the Irish judiciary in its determination of what constitutes a ‘disability’. It does not include temporary illness, but it may include a disabling or chronic illness that hinders participation in professional life (Case C-13/2005, Chacón Navas). It is accepted by the Court of Justice that the concept of ‘disability’ is not defined anywhere in Directive 2000/78/EC, nor does the Directive refer to the laws of the Member States for the definition of that concept. Therefore, in order to ensure the uniform application of Union law and the principle of equality, a definition should be provided having regard to the context of the provision and the objective pursued by the legislation in question. The Court held in this case that in setting this definition it would need to account for the fact that the legislature had deliberately chosen to use the word ‘disability’, as distinct from ‘sickness’. Therefore, treatment of an employee in a particular way on grounds of their ‘sickness’ does not fall within the general framework laid down for combating discrimination on grounds of ‘disability’ in Directive 2000/78/EC. The Court of Justice has effectively provided that three conditions must be met for a person to be considered disabled for the purposes of the legislation:

(a)there is a limitation resulting from physical, mental or psychological impairments;

(b)the limitation hinders the participation of the person in professional life; and

(c)it is probable that the limitation will last for a long time.

No criteria are set, however, for any of these conditions, leaving open the possibility of a more flexible, or at least ad hoc, assessment in individual cases as to whether the person’s condition can be considered a disability. The Equal Treatment Directive does, of course, also allow individual Member States to implement measures which go beyond that which is required under EU law protecting the disabled from discrimination (Directive 2000/78/EC, Article 8.1). Having said that, the continued absence of a definition of ‘disability’ in EU law leads to an overall lack of legal certainty when seeking to ascertain what protection or accommodation may be legally available for chronic migraine sufferers in their employment.

Protection available for chronic migraine sufferers under EU law

If the chronic migraine sufferer can be classified as ‘disabled’ for the purposes of the Equal Treatment Directive, then it is clear that ‘[t]he provision of measures to accommodate the needs of disabled people [including migraineurs] at the workplace plays an important role in combating discrimination on grounds of disability’ (Preamble, recital 16). It goes on to say that ‘[t]his Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities’ (Preamble, recital 17). However, ‘[a]ppropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources’ (Preamble, recital 20). In determining whether taking these measures places an unreasonable burden on the employer, it is stated that ‘[…] account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or other assistance’ (Preamble, recital 21).

Discrimination, under the terms of the Directive, can be either direct or indirect. Normally, discrimination against migraine sufferers is much more likely to be indirect. This occurs when:

[…] an apparently neutral provision, criterion or practice would put persons having a […] particular disability […] at a particular disadvantage compared with other persons […]. (Article 1.2).

So, for example, not making a ‘reasonable adjustment’ to the working environment of the migraineur could potentially be a case of indirect discrimination. This is discussed further below.

The Directive itself applies to all persons working in both the public and private sectors in relation to, inter alia, their employment and working conditions (Article 3.1). It does not, however, apply to the armed forces should a MemberState decide this (Article 3.4).

The key provision of the Directive for migraine sufferers is Article 5. It provides that reasonable accommodation be made for disabled persons. It states that:

[i]n order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided [including] that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer.

This is the vital point for migraineurs. The Directive makes it clear that employers, both public and private, must take appropriate measures, within their budgets, to facilitate those who suffer from a disability. Accommodation should, therefore, be made in the workplace to ensure that the chances of the migraineur suffering an attack, or repeated attacks, is minimised. Employers are obliged to make a ‘reasonable adjustment’ in the circumstances.

The EU Member States are obliged to ensure that appropriate procedures are in place to ensure that the obligations set out in the Directive are available to all those who consider that they have not been treated fairly (Article 9.1). The burden of proof should always be on the respondent to prove that there has been no breach of the principle of equal treatment (Article 10.1). Member States must also introduce provisions that protect employees from dismissal or any other form of adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings initiated (Article 11). They must also ensure that any national laws introduced to give effect to this EU Directive are brought to the attention of employees by all appropriate means at the workplace (Article 12). Adequate measures should be taken between social partners to foster equal treatment, including through the monitoring of workplace practices, collective agreements and codes of conduct (Article 13.1). Member States should also encourage dialogue with appropriate non-governmental organisations which have a legitimate interest in contributing to the fight against discrimination (Article 14). Any sanctions, such as the payment of compensation, imposed for infringements of national provisions that transpose the Directive into domestic law must be ‘effective, proportionate and dissuasive’ (Article 17). The terms of the Directive were due to be complied with by the Member States by 2 December 2003, with some allowances made for measures to be taken to combat disability discrimination by 2006, provided the Commission was informed of this delay (Article 18).

Other relevant EU legal instruments and texts

Other EU texts lend weight to the obligation imposed to ensure that those classified as suffering from a disability receive set minimum levels of protection. For example, the Charter of Fundamental Rights of the European Union states that:

[a]ny discrimination based on any ground such as […] disability […] shall be prohibited […]. (Article 21.1).

The Charter now has full legal status within EU Law. In addition to this, the Community Charter of the Fundamental Social Rights of Workers states that: