Diabetes as a disability

Author: Darren Newman

Darren Newman

Consultant editor Darren Newman considers a recent Employment Appeal Tribunal decision involving the concept of disability for the purposes of the Equality Act 2010, when considered in relation to an individual with type 2 diabetes largely controlled by avoiding sugary drinks.

Disability discrimination cases deal with a wide range of conditions and the temptation is to divide these conditions into those that are, and those that are not, disabilities. However, this is not a very helpful approach. Disability is not a medical category; it cannot simply be diagnosed. It is a legal and social concept that depends not just on a person's physical or mental condition, but also on the effect that this has on their life. Rather than considering whether or not a condition amounts to a disability, we should look at the effect that it has on the person and then decide whether or not that person is disabled.

So when we read that the Employment Appeal Tribunal (EAT) - in Metroline Travel Ltd v Stoute [2015] IRLR 465 EAT - has held that type 2 diabetes is not a disability, we should regard this with caution. On close inspection, however, the case is a little more complicated than the headlines would have us believe. In the first place, what the EAT actually did was to overturn an employment tribunal finding that type 2 diabetes must by its very nature be regarded as a disability. Insofar as the tribunal said that, it was clearly wrong. The EAT also acknowledged that type 2 diabetes can be a disability depending on the impact that it has on a person's ability to carry out normal day-to-day activities. What has raised eyebrows in the employment law world, however, is the basis on which the EAT held that the claimant in this particular case was not disabled.

One important aspect of the definition of disability is that, in judging the effect of a condition, the tribunal should disregard any measures that are taken to treat or correct it (para.5 of sch.1 to the Equality Act 2010). This means that an employee who controls their epilepsy with medication, for example, will still be disabled, even though, with the medication, their day-to-day activities are not affected. However, there has always been ambiguity in the wording of the Act. What measures does it include? The difficulty is in distinguishing forms of treatment that should be disregarded as mere coping strategies that reduce the impact of a condition to the extent that it is insufficiently severe for the claimant to be disabled. The statutory guidance on the meaning of disability suggests that the issue is whether or not someone can reasonably be expected to modify their behaviour in a way that reduces the impact of the condition (para.B7), but also suggests that a person with diabetes who modifies their behaviour by following a special diet should have the effect of the condition assessed as if the diet were not followed (para.B14).

In Stoute, the EAT was told that the claimant controlled his diabetes by avoiding sugary drinks. It held that this was not a treatment to be disregarded but was instead simply a coping strategy that lessened the impact of the condition.

Rather surprisingly, HH Judge Serota QC - who was sitting alone in the EAT - referred to the fact that he himself had type 2 diabetes and that it had no substantial adverse effect on his ability to carry out day-to-day activities. There is, of course, nothing wrong with judges bringing their real-world experience to bear on the issues that come before them, but this might be carrying things a bit far. However, it does appear that the evidence in this case was that the employee suffered no ill effects other than the need to avoid sugary drinks, and Judge Serota did not think that this amounted to a substantial interference with his normal day-to-day activities.

Noticeably missing from the EAT decision, however, is any reference to recent decisions from the European Court of Justice (ECJ). In Ring v Dansk Almennyttigt Boligselskab; HK Danmark, acting on behalf of Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S [2013] IRLR 571 ECJ and in FOA, acting on behalf of Karsten Kaltoft v Billund Kommune [2015] IRLR 146 ECJ, the ECJ emphasised that the meaning of disability has to be seen in the context of the definition used by the United Nations Convention on the Rights of Persons with Disabilities. That definition focuses on the way in which the claimant's condition interacts with various physical or social barriers and asks whether or not their ability to participate in employment or society on an equal basis with others is adversely affected.

It seems that the importance of this shift in emphasis has not fully filtered through in the UK - even though the importance of the definition in the UN Convention was acknowledged by the EAT in Sobhi v Commissioner of the Police of the Metropolis EAT/0518/12. It should now be clear that what has to be considered is not the general question of whether or not the condition has a substantial effect on normal day-to-day activities but whether or not the claimant is hindered in their ability to participate in professional life on an equal basis with others.

One unusual feature of the decision in Stoute is that, by the time of the appeal, the substantial claim that Mr Stoute had brought had already been heard and dismissed. The employer was appealing against the tribunal finding that Mr Stoute was disabled when the tribunal had already gone on to find that he had not in fact been discriminated against. This is a strange situation. The employer had won the case on its merits but was still pursuing the appeal in respect of the preliminary point that it had lost. Judge Serota took some persuading that the appeal should be heard at all and let it proceed only because of the risk that the tribunal decision would be relied on by other employees with type 2 diabetes (despite acknowledging that a tribunal decision is not binding on other cases and is "of relatively little persuasive value").

If, however, the case had involved a finding of actual discrimination, the EAT conclusion that Mr Stoute was not disabled would be hard to justify. If Mr Stoute's diabetes had resulted in his being treated unfavourably, it would be difficult to deny that his condition hindered his participation in professional life as contemplated by the UN Convention. The corollary of that is that it is difficult in such cases to conclude that someone is not disabled without first determining whether or not their condition has led to any unfavourable treatment. In disability discrimination cases it is common for the issue of whether or not the claimant is disabled to be decided at a preliminary hearing before the merits of the claim are considered. However, it now seems clear that the question of whether or not an employee is disabled is inextricably linked with the question of whether or not they have been treated unfavourably. This may have significant implications for how disability discrimination cases are managed in the future. We can add the current definition of disability in the Equality Act 2010 to the list of those measures that need substantial revision in order to bring them into line with EU law.