In Taylor v Ladbrokes Betting and Gaming Ltd, the employment appeal tribunal considered the argument that type 2 diabetes should be treated as a progressive condition under the Equality Act 2010 and therefore deemed to be a disability. The case was remitted to the employment tribunal to be reconsidered in light of further medical evidence.
Under the Equality Act 2010, a person whose condition is progressive and who, in the future, is likely to end up with an impairment which has a substantial adverse effect on their ability to carry out normal day-to-day activities as a result of the deterioration of their condition, is to be regarded as suffering from a disability, before they have got to that stage.
T suffers from type 2 diabetes. This is controlled by medication and may be further controlled by T modifying his lifestyle, diet and exercise. T was dismissed by Ladbrokes Betting and Gaming Ltd and subsequently brought claims of unfair dismissal and unlawful disability discrimination. At a preliminary hearing, the employment tribunal decided, relying on two medical reports by a consultant physician with a special interest in diabetes, that T was not disabled. T appealed.
Although mindful of opening up the floodgates by regarding a condition as a disability when it might be suffered by a significant proportion of the population and can be controlled by a very commonplace and simple measure, the EAT allowed the appeal.
The EAT determined that the employment tribunal had not properly addressed the question of whether type 2 diabetes was a progressive condition, which would amount to a disability. The EAT held that the correct approach was to consider whether T’s condition is “likely” to result in T having an impairment which has a substantial adverse effect in the future?
In the circumstances, the EAT concluded that the medical evidence produced to the employment tribunal was sufficiently unclear to enable it to establish the extent to which the longer-term effects of type 2 diabetes would have a substantial adverse effect on day-to-day activities. In remitting the case for rehearing, the EAT observed that if there was a small possibility of deterioration of the condition in the population that would be enough to make it “likely” that it might result in the particular individual having such impairment.
The EAT distinguished the case of Metroline Travel Ltd v Stoute, which addressed the question of whether type 2 diabetes was a disability through consideration of the effect of medical treatment on the condition. In Metroline, the EAT held that the abstention from sugary drinks was not a measure such that the condition of type 2 diabetes was not a disability. The EAT observed in this case that the extent to which a person could reasonably be expected to modify their behaviour (in T’s case by changing his lifestyle, diet and exercise) as well as any medical treatment, should be taken into account within the context of determining whether a progressive condition amounts to a disability, was unclear.
Simon deMaid comments: “This case adopts an interesting approach to the question as to whether type 2 diabetes amounts to a disability, though it is far from clear whether it will be successful. Obviously, given the incidence of type 2 diabetes within the general population, the decision of the tribunal could have far-reaching implications for employers. The case also highlights the importance of both parties asking the right questions of a medical expert relevant to the issues at hand.”
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