In Metroline Travel Ltd v Stoute UKEAT/2015/0302, the EAT has overturned an employment tribunal's decision that an employee's type 2 diabetes amounted to a disability under the Equality Act 2010. The condition, which was controlled by diet and by avoiding sugary drinks, did not have a substantial adverse effect on the employee's ability to carry out normal day to day activities. 

Facts

Mr Stoute was employed by Metroline Travel Ltd (Metroline) as a bus driver from 24 February 1992 to 11 March 2013, when he was dismissed for gross misconduct. He had a chequered employment history, which included diverting his bus so that he could buy some chicken kebabs. Mr Stoute subsequently brought claims for unfair dismissal, discrimination arising from disability and failure to make reasonable adjustments.

ET decision

At a preliminary hearing, the employment tribunal (ET) determined that Mr Stoute suffered from type 2 diabetes and that he was disabled within the meaning of the Equality Act 2010. Metroline appealed against this decision. The Employment Appeal Tribunal (EAT) agreed to hear the appeal on the issue of disability. However, in the meantime, another division of the ET dismissed Mr Stoute's claims. 

Whilst the issue of disability was arguably now academic on the basis that all of the claims had been dismissed, Metroline was keen to pursue the appeal against the preliminary hearing decision on disability. Metroline employed a number of people who suffered from type 2 diabetes and it was concerned that, as the business was heavily unionised, it was a decision that could be used by other diabetic employees who might wish to have themselves recognised as suffering from a disability. Metroline also considered the decision to be of wider interest and importance.

Issues considered at the EAT hearing

The EAT judge disclosed that he himself suffers from type 2 diabetes, largely controlled by diet, which has no adverse effect on his ability to carry out day to day activities. During the course of its considerations, the EAT observed that the original ET judge had referred to the guidance on the definition of disability produced by the Equality and Human Rights Commission, in particular paragraph B12, which provides that in essence any medical treatment or correction should be ignored for the purposes of considering whether an impairment has a substantial adverse effect on normal day to day activities. In the EAT's opinion, it would be difficult to see how a perfectly normal abstention from sugary drinks such as coca cola or fruit juice could be regarded as a medical treatment. 

The EAT took into account that, whilst paragraph B12 of the statutory guidance had been applied by the original ET judge, paragraph B7 had not been considered. This paragraph provides that account should be taken of how far 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.  For example, a person who needs to avoid certain substances because of allergies may find the day to day activity of eating substantially affected. Account should be taken of the degree to which a person can reasonably be expected to behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day to day activities.

In applying this analysis to the facts of this case, it was not unreasonable to expect Mr Stoute to use a coping or avoiding strategy and thereby abstain from having sugary drinks, which would result in his impairment ceasing to have a substantial adverse effect on his ability to carry out normal day to day activities.

EAT decision

The EAT therefore concluded that the ET decision was wrong; it did not consider that type 2 diabetes amounted to a disability. Where a person suffering from type 2 diabetes can control their diet, including by abstaining from sugary drinks, this did not amount to a medical treatment or correction and therefore should not be ignored when considering the issue of whether an impairment has a substantial adverse effect on normal day to day activities.

Despite Mr Stoute not being involved in the EAT hearing, meaning that no information was available as to his means, he was ordered to repay Metroline's fees of £1,600 for having to lodge the appeal.  Whilst the EAT took into consideration whether the appeal was necessary, noting that it was primarily for Metroline's benefit, it took the view that there was little else Metroline could have done other than to have appealed the decision to have the effect of the judgment nullified.

Comment

Despite the EAT judge commenting drily that "in the great scheme of things, this particular case will scarcely ruffle the pages of the Willesden Gazette, if there is such a thing", this decision provides helpful clarification for employers with employees suffering from type 2 diabetes who are unsure whether the condition amounts to a disability. In short, the decision makes it clear that if a person suffering from type 2 diabetes can control their condition by diet or some form of coping or avoidance strategy (such as avoiding sugary drinks), it is unlikely the condition will amount to a disability.

As recognised by the EAT, this decision will have a wider bearing on employees who may have other conditions such as nut allergies and an intolerance to lactose, which similarly could be controlled by diet and/ or a form of coping or avoidance strategy. These are equally unlikely to be considered a form of medical treatment or condition and therefore should not be ignored when considering whether a purported impairment has a substantial adverse effect on normal day to day activities.