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Diabetes Type 2 is not a disability says the Appeal Tribunal

In the recent case of Metroline Travel Ltd v Stoute, the Employment Appeal Tribunal (EAT) has found that diet-controlled Type 2 diabetes does not amount to a disability under the Equality Act 2010.

Mr Stoute had been dismissed for gross misconduct from his job as a bus driver. He suffered from Type 2 diabetes, controlled by following a diabetic diet which involved abstaining from sugary food and drinks. Failure to do so could result in a hypoglycaemic episode.

When Mr Stoute was dismissed he brought claims for unfair dismissal, disability discrimination, and a failure to make reasonable adjustments. At a preliminary hearing, the employment tribunal held that Mr Stoute suffered from a disability within the meaning of the Equality Act 2010 and, in reaching its decision, referred to paragraph B12 of the Equality Act Guidance, which 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.

The employment tribunal felt that abstaining from sugary foods and drinks could be deemed to be a form of correction.

Notwithstanding the decision that Mr Stoute was disabled, his substantive claims were subsequently dismissed. His employer, Metroline, nevertheless appealed against the decision on disability because they were concerned that other members of their workforce who had Type 2 diabetes might be encouraged to make claims on this basis.

The EAT held that the employment tribunal was wrong to conclude that Mr Stoute (and, as a result, anyone with diet-controlled Type 2 diabetes) is disabled. It did not agree that abstaining from sugary foods/drinks could be regarded as “treatment or correction” or a substantial interference with normal day-to-day activities. If this were the case, it could lead to open floodgates for claims by those who have to restrict their diet (for example, those with nut allergies or lactose intolerance). The EAT also pointed out paragraph B7 of the Equality Act Guidance, which states:

“In some instances, a coping or avoidance strategy might alter the effect of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability.”

The judgment confirms that having Type 2 diabetes in itself cannot automatically mean that a person is disabled and illustrates that even medically well-recognised conditions will not always amount to a disability. Whilst this is not necessarily an unreasonable result, there has been some criticism at the way in which it was reached; it appears to suggest that those conditions controlled by diet would not amount to a disability. The EAT also did not refer to B14 of the Equality Act Guidance which states:

“…the case of someone with diabetes which is being controlled by medication or diet should be decided by reference to what the effect of the condition would be if he or she were not taking that medication or following the required diet.”

Of course, every case should be considered on an individual basis, by applying the statutory definition set out in the Equality Act 2010, which states that an employee is disabled if he/she “has a mental or physical impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”, as well as by referring to the statutory Guidance. It is also important to note that the EAT accepted that medicated diabetes sufferers (Type 1 or Type 2) are regularly considered to be disabled for the purposes of the Equality Act 2010.

By Holly Rushton, Associate Solicitor, Landau Law

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