The Equality Act 2010 makes it illegal for employers to discriminate against someone simply because of their disability.
The definition of disability is met if someone suffers with a physical or mental impairment that has a ‘substantial’ and ‘long-term’ effect on their ability to do normal daily activities. Guidance from the Equality Commission states that, you should disregard any ‘treatment or correction’, that improves or alleviates the effects of the disability.
Case law has previously treated diabetes as falling within the definition of disability. However, in the recent case of MetrolineTravel Ltd v Stoute, the Employment Appeal Tribunal (EAT) made a distinction between those who suffer with Type 1 diabetes and those who suffer with Type 2 diabetes.
The Claimant, Mr Stoute, was a bus driver who suffered from Type 2 diabetes, which he controlled largely by avoiding sugary drinks. The Employment Tribunal held that he was disabled within the meaning of the Equality Act 2010. The Respondent appealed and the EAT allowed the appeal on the basis that the Employment Tribunal had “misunderstood the concept of disability” under the Act.
The EAT decided that the statutory guidance from the Equality Commission made clear that a condition controlled by a minor alteration of a diet was not a long term condition restricting the ability of the Claimant to carry out ordinary day-to-day tasks within the definition of disability. The EAT Judge concluded that that it would be difficult to see how a perfectly normal abstention from sugary drinks could be regarded as a medical treatment. He was therefore unable to agree with the Tribunal’s initial decision and held that the abstention from sugary drinks does not constitute a substantial adverse effect on day-to-day activities caused by the Type 2 diabetes. The Judge was concerned that to decide otherwise would also mean that people with other conditions such as nut allergies or intolerance to lactose would also be regarded as disabilities.
In contrast, the EAT considered that a medicated diabetic would regularly be treated as disabled under the Act even if there had been no episode showing a substantial interference with normal day-to-day activities. This makes a clear distinction between Type 1 and Type 2 diabetes.
The EAT therefore held that there had been an error in law by the Tribunal. They also ordered the EAT to repay the Respondent's fees in full.
Despite the above, this doesn’t mean that Type 2 diabetes will never amount to a disability. However, the case will determine how future Tribunal cases will determine the definition of disability and Employment Tribunal Judges are likely to take extra care in determining whether Diabetes meets the definition under the Equality Act.
If you have had an issue similar to this and would like further advice our discrimination team can be contacted on 0345 122 8665.
By Danielle Watts, employment & discrimination advisor in the dispute resolution team