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The EAT held that endometriosis can amount to a disability under the Equality Act and criticised the tribunal’s approach to reasonable adjustments, dismissal justification and performance management under an ‘up or elsewhere’ model.
29 April 2026
Case Study
The Employment Appeal Tribunal (EAT) considered whether endometriosis amounts to a disability under the Equality Act 2010 and how employers should approach performance management where long-term health conditions affect attendance and progression.
The case is particularly significant given that endometriosis affects around 1 in 10 women in the UK, with diagnosis often taking many years.
Ms Pal began working for Accenture in 2009 and progressed through a series of promotions. The organisation operated a strict “up or elsewhere” performance model requiring employees to demonstrate ongoing promotion readiness or face termination. In 2018, Ms Pal underwent surgery to remove ovarian cysts and was diagnosed with endometriosis, resulting in a period of sick leave and recovery.
By 2019, she was considered “not progressing” in line with the employer’s expectations. Despite her medical condition, recent surgery and ongoing symptoms, she was dismissed for failing to meet the required progression standard.
Ms Pal brought claims for unfair dismissal and disability discrimination.
Case Study
The Employment Tribunal initially found that Ms Pal had been unfairly dismissed due to procedural flaws in the employer’s approach.
It criticised the use of a disciplinary-style process for what was essentially a capability issue. However, it made no award of compensation, applying a 100% Polkey reduction on the basis that the employer would have reached the same outcome through a fair process.
The Tribunal also found that endometriosis did not amount to a disability, primarily because the condition had not lasted 12 months at the time of dismissal. It further held that dismissal could be justified due to the employer’s performance expectations and business requirements.
The EAT disagreed and overturned key findings. It held that the Tribunal had failed to properly apply the legal test for disability and had made unsupported assumptions about how events would have unfolded.
On unfair dismissal, the EAT held that dismissal for “not being ready for promotion” does not fit within capability relating to the employee’s current role. It may, depending on circumstances, fall under SOSR rather than capability.
The EAT also overturned the 100% Polkey reduction, finding the Tribunal had wrongly assumed the employer would have implemented and fairly applied an alternative process without evidential support.
The case was remitted to a differently constituted Tribunal for reconsideration of disability discrimination and remedy.
This decision is a clear reminder that long-term health conditions do not need to be constant or predictable to attract protection under the Equality Act 2010. Conditions such as endometriosis, which can fluctuate in severity and respond temporarily to treatment, may still amount to a disability where the overall impact is substantial and long-term. Employers should therefore focus on the real-world functional effect of a condition, rather than assuming that periods of improvement or absence of symptoms remove legal protection.
In practice, this means employers should take a more structured and cautious approach when managing absence, performance, and progression decisions involving health conditions. Key considerations include:
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