Determining whether someone has a Disability
In a recent case the Employment Appeal Tribunal considered the issue regarding an employee who had type 2 diabetes which could be controlled by a managed diet.
The Equality Act 2010 sets out what the definition of a disability is and therefore before any claim for disability discrimination can be decided it must first be established if the employee or worker in questions has a disability.
The definition is:
‘a person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities’.
The employee in this case, Mr Stoute suffered from Type 2 diabetes. He had been employed as a bus driver for 21 years by Metroline Travel Ltd (Metroline).
When Mr Stoute was dismissed for gross misconduct he pursued claims in the Employment Tribunal for unfair dismissal, discrimination arising from disability, and a failure to make reasonable adjustments.
Metroline did not agree that Mr Stoute was a disabled person for the purposes of the Equality Act and so a preliminary hearing was held at the Employment Tribunal to decide this issue.
The Employment Tribunal took into consideration the Equality Act 2010 guidance in reaching their decision that Mr Stoute was disabled. In particular the guidance states “where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect.”
Mr Stoute argued that the treatment or correction that he utilised to mitigate the effect of his diabetes was a modified diet.
The Employment Tribunal agreed that Mr Stoute was a disabled person and allowed him to continue with his claims. They decided that as Mr Stoute followed a diet which was designed to avoid sugary foods and fizzy drinks this was the equivalent to medical treatment. He was taking steps to control his condition and prevent day to day symptoms.
When it got to the final substantive hearing of his claims he was however ultimately unsuccessful in claiming discrimination or unfair dismissal.
In an unusual turn of events even though they had successfully defended Mr Stoute’s claims, Metroline appealed against the decision of the Tribunal that he was a disabled person.
The reason for their appeal was that Metroline were concerned that the judgement of the preliminary hearing could be used by other employees with Type 2 diabetes to bring claims against them and that as there were a number of members of their workforce with this condition it was important to them and other employers.
The Employment Appeal Tribunal allowed Metroline’s appeal deciding that Type 2 diabetes per se does not amount to a disability.
The Appeal Tribunal stated that the reference in the Equality Act 2010 guidance to treatment for an impairment was not wide enough to consider Mr Stoute’s change to his diet, which was essentially him abstaining from sugary drinks.
Points to Note
Whilst this case is interesting and one to note when it comes to making a decision about the disabled status of someone with Type 2 diabetes, as an employer you should proceed with caution if an employee presents with this condition.
The assessment of disability is not an easy one to make and each employee should be taken as an individual. If you are in any doubt then it is recommended that you obtain a medical report which addresses the issue of their condition and status.