There are two types of diabetes; type 1 which is insulin controlled and is usually found to satisify the definition of disability under the Equality Act 2010 and type 2, which can be controlled by diet or medication. This month the EAT has overturned an Tribunal's decision in the case of Metroline Travel Ltd v Stoute that an employee’s type 2 diabetes amounted to a disability under the Equality Act 2010. The EAT held that the condition, which was controlled by diet (i.e. by abstaining from sugary drinks), did not have a substantial adverse effect on the employee’s ability to carry out day-to-day activities.
The Claimant was employed by the Respondent as a bus driver from 24 February 1992 to 11 March 2013 when he was dismissed for gross misconduct.
Whilst the Claimant's claims for unfair dismissal, discrimination arising from disability and failure to make reasonable adjustments were all dismissed and the EAT allowed the Respondent's appeal to be heard as it would affect other employees of the Respondent who also suffered from type 2 diabetes.
The issue in the appeal focused on the effect of the condition of type 2 Diabetes on The Claimant's normal day to day activities and whether the effects on the Claimant meant that his condition fell within the definition of disability i.e. that it had a substantial adverse effect on their ability to carry out normal day to day activities.
During the proceedings it was noted that a diabetic diet involves trying to avoid foods with a significant sugar content including sweets, chocolates and fruit juices etc, and that someone suffering from type 2 diabetes who does not properly manage his blood sugar levels might be at risk of suffering a hypoglycaemic attack.
The guidance on the definition of disability by the Equality Commission states that the effects of any “treatment or correction” are to be disregarded when deciding if an impairment is likely to have a substantial adverse effect on a person’s ability to carry out normal day to day activities.
The Employment Tribunal therefore concluded that, disregarding the diet, the Claimant could well suffer hypoglycaemic attacks and accordingly should be regarded as having a disability.
The Judge hearing the case on appeal disagreed with the Tribunal and in doing so referred to his own personal experience of suffering from type 2 diabetes stating that this had no effect on his ability to carry out normal day-to-day activities, other than to watch what he ate or drank. As such, in his view, “perfectly normal abstention from sugary drinks” could not be regarded as a medical treatment.
This decision seems perfectly sensible. It also follows that similar conditions, such as nut allergies and intolerance to lactose, will not amount to a disability. However, employers should be careful not to automatically assume that type 2 diabetes and/or similar conditions will never amount to disability. Each case will turn on its own facts. For example, can the coping strategy (i.e. following a specific diet) be reasonably expected and therefore not a medical treatment and also whether there still remains a substantial effect on the employee’s normal daily activities.
For more information, please contact the employment team at Foot Anstey