A recent ruling from the Employment Appeal Tribunal (EAT) suggests that it will be difficult for an individual with type 2 diabetes (or some other impairment) to show that the condition, in itself, constitutes a disability if he or she can eliminate its adverse effects by following a healthy, balanced diet.

The law in outline

Most HR and diversity practitioners are familiar with the definition of disability in the Equality Act 2010, with its requirement for a condition to have a substantial and long-term adverse effect on the ability to carry out day-to-day activities in order to be considered a disability (with certain exceptions).  It is also generally well known amongst practitioners that, in assessing whether someone is disabled, the effect of measures that are being taken to treat or correct a condition must be discounted. The test, then, is whether the condition could well have a substantial effect on the individual’s ability to carry out day to day activities if those measures were not being taken. So, as it was put in SCA Packaging Ltd v Boyle [2009] IRLR 746, HL: 'a blind person who can get about with a guide dog is still disabled. A person with Parkinson's disease whose disabling symptoms are controlled by medication is still disabled. An amputee with an artificial limb is still disabled.' 

Where there remains some doubt, however, is on the issue of what constitutes a ‘measure taken to treat or correct’ a condition and, in particular, where the dividing line should be drawn between such measures, the effects of which must be disregarded, and coping or avoidance strategies whose effects should not be discounted.  As a starting point, the Equality Act itself makes it clear that the word ‘measures’  includes, in particular, medical treatment and the use of a prosthesis or other aid.  However, this is not an exhaustive definition and statutory guidance gives other examples, including counselling (for depression) and control of diabetes by diet.  The last of these examples must now be treated with some caution, however, following the EAT’s recent decision in the case of Metroline Travel Ltd v Stoute. 

Background to the case

Mr Stoute brought a claim of disability discrimination against his former employer.  He has type 2 diabetes, which at the material time he controlled by following a diabetic diet by avoiding, for example, sugary drinks. In determining whether or not the claimant was a disabled person, an Employment Judge referred to the statutory guidance outlined above and concluded that it was necessary to look at how his condition would affect him if he did not control his diet in this way. On that basis, the Judge ruled that Mr Stoute was disabled. 

Appeal decision

On appeal, however, the EAT overturned that decision, ruling that abstaining from sugary drinks and the like is not sufficient to amount to a particular diet and, therefore, it does not amount to a measure taken to treat or correct a condition.  In reaching that conclusion, the EAT referred to another part of the statutory guidance, which makes the point that if a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities then that person’s condition might not meet the definition of disability.

Comment

It is not easy to reconcile the EAT’s decision with the statutory guidance, given that the guidance specifically identifies the control of diabetes by diet as an example of a measure taken to treat or correct a condition that might have to be disregarded in assessing whether an individual is a disabled person.  In the particular circumstances of the case, however, the EAT’s decision can probably be accounted for by the fact that the dietary adjustments the claimant needed to make to control his condition were apparently (at least in the EAT’s view) minor. 

If someone has a condition which requires them to follow a more extreme or unusual diet the position is different: such a diet is more likely to constitute a ‘measure taken to treat or correct’ the condition and may well, itself, have a substantial adverse effect on the individual’s ability to carry out the normal day to day activity of eating. 

Metroline Travel Ltd v Stoute, EAT, 26 January 2015