But the ruling is out of kilter with statutory guidance
A recent Employment Appeal Tribunal decision in the case Metroline Travel v Stoute suggests it will be difficult for those with type 2 diabetes (or some other impairment) to show that the condition, in itself, constitutes a disability if they can eliminate its adverse effects by following a healthy, balanced diet.
Under the Equality Act 2010, people will usually only be considered disabled if they have a condition which has a substantial and long-term adverse effect on their ability to carry out day-to-day activities. In assessing whether someone is disabled, the effect of measures to treat the condition must be discounted. The test is whether the condition could have a substantial effect on the individual’s daily activities if those measures were not taken.
The Act makes it clear that the word ‘measures’ includes medical treatment, and the use of prostheses or other aids. But this is not an exhaustive definition and statutory guidance gives other examples, including counselling (for depression, for example) and the control of diabetes by diet. The last of these examples must now be treated with some caution, however, following the Metroline Travel case.
Tribunal
Stoute brought a disability discrimination claim following his dismissal for gross misconduct. One issue the tribunal had to determine was whether he was, in fact, disabled. He had type 2 diabetes, which he controlled by following a diabetic diet – avoiding sugary drinks, for example. The employment judge, referring to the statutory guidance, concluded it was necessary to look at the effect the condition would have on the claimant if he did not control his diet. On that basis, the judge ruled Stoute was disabled.
EAT
The Employment Appeal Tribunal took a different view, ruling that abstaining from sugary drinks and so on was not a particular diet and, therefore, did not amount to a measure taken to treat or correct a condition. The EAT referred to another part of the statutory guidance, which makes the point that if someone can reasonably be expected to modify his or her behaviour to prevent or reduce the effects of an impairment on normal day-to-day activities (for example, by using a coping or avoidance strategy) then that person’s condition might not meet the definition of disability.
Comment
It is not easy to reconcile this decision with the statutory guidance which specifically identifies the control of diabetes by diet as an example of a measure taken to treat a condition that might have to be disregarded in assessing whether an individual is disabled. However, the outcome can probably be explained by the fact that the dietary adjustments the claimant in this case needed to make to control his condition were apparently minor (at least in the EAT’s view): the appeal tribunal regarded the claimant’s diet as no more than a “perfectly normal abstention from sugary drinks”. A condition requiring a more onerous diet is more likely to constitute a ‘measure taken to treat or correct’ an impairment and may well, in itself, have a substantial adverse effect on the individual’s ability to carry out the normal day- -to-day activity of eating.
The EAT appeared not to take account of the fact that the claimant was also taking prescription medication to reduce his blood sugar. It could have asked itself how the claimant would have been affected if his medication had been discontinued, but this question does not feature in its reasoning. Employers should, therefore, not assume that the same conclusion would be reached in all cases involving type 2 diabetes, particularly not those where medication is used to keep the condition under control.
Simon Rice-Birchall, partner and head of discrimination law at Eversheds
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