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Type 2 Diabetes and the Definition of Disability
Whilst people suffering from cancer, multiple sclerosis or HIV are automatically deemed to be disabled for the purposes of the Equality Act 2010, in the case of other illnesses, whether or not a worker is disabled will depend on whether or not their condition has a long-term substantial adverse effect on their ability to carry out normal day-to-day activities. Where the effect is reduced or controlled by medication or medical treatment, its impact must be measured without reference to those improvements.
In Metroline Travel Limited v Stoute, the bus company employer sought to set aside a decision made by the Employment Tribunal (ET) at a preliminary hearing that Type 2 diabetes necessarily constituted a disability within the meaning of the Act.
Mr Stoute, who managed his condition by following a diabetic diet – for example, avoiding sugary drinks – had been dismissed from his job as a bus driver for gross misconduct and pursued claims for unfair dismissal, discrimination arising from disability and failure to make reasonable adjustments to ensure that he was not at a disadvantage compared with non-disabled people. The ET concluded that he was disabled as without managing his blood sugar levels through monitoring his diet, he could well suffer hypoglycaemic attacks.
Mr Stoute's claims were all subsequently dismissed at a full hearing of the ET. However, Metroline was concerned that other employees suffering from Type 2 diabetes would seek to be recognised as suffering from a disability and appealed against the ET's initial ruling.
The Employment Appeal Tribunal (EAT) ruled that Type 2 diabetes does not amount to a disability per se. In reaching its decision, it referred to paragraph B7 of 'guidance on matters to be taken into account in determining questions relating to the definition of disability', issued by the Office for Disability Issues. This states that 'account should be taken of the degree to which a person can reasonably be expected to behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day-to-day activities'.
In the EAT's view, the ET's decision was wrong. Abstention from sugary drinks cannot be regarded as medical treatment and there was nothing to suggest that there had been any substantial interference with Mr Stoute's normal day-to-day activities. The ET's decision would mean that any person with Type 2 diabetes controlled by diet would be regarded as disabled under the Act. It would also mean that people with conditions such as lactose intolerance or nut allergies would have to be regarded as disabled.
A guide to this topic, 'Guidance on matters to be taken into account in determining questions relating to the definition of disability', is available from the Office for Disability Issues, can be found here.