An employee is disabled under s6(1) of the Equality Act 2010 if they have a physical or mental impairment which has an adverse, substantial and long-term effect on their ability to carry out normal day-to-day activities. The Act provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect.
In considering whether an employee is disabled, a tribunal must consider the Guidance on matters to be taken into account in determining questions relating to the definition of disability. Paragraph B12 says, with reference to the effect of treatment on disability that "In this context, medical treatments would include treatments such as counselling, the need to follow a particular diet, and therapies, in addition to treatments with drugs."
However, the Guidance also says that, if a person can reasonably be expected to modify their behaviour to reduce the effects of an impairment on their normal day-to-day activities, they might not be considered disabled. Paragraph B7 of the Guidance states that if it is possible to use a coping or avoidance strategy to minimise the effects of an impairment to the extent that they are no longer substantial, than that person will not meet the definition of disability.
This was an appeal by the employer of a decision that an employee with type 2 diabetes was disabled within the meaning of the Equality Act 2010. His claims for unfair dismissal, discrimination arising from disability and failure to make reasonable adjustments were all dismissed. Although the decision of the appeal was academic to the employee by this point, the EAT was persuaded that it was justified to consider the appeal.
The Claimant suffers from type 2 diabetes. He was employed as a bus driver for 11 years until dismissed for gross misconduct.
At the preliminary hearing to determine whether or not the Claimant was disabled, the Employment Tribunal considered a medical report and noted that there were two periods when the Claimant was not taking medication to reduce his blood sugar levels, and the Claimant had told the medical expert that he followed a diet to control his diabetes which included avoiding sugary drinks.
The Employment Judge had referred to the Equality Commission's guidance on disability, which provided at paragraph B12 that an impairment the subject of treatment or correction was to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment was likely to have that effect. "Likely" means "could well happen" rather than "more likely than not to happen".
The EAT (HH Judge Serota QC) said that "It is difficult, in my opinion, to see how a perfectly normal abstention from sugary drinks could be regarded as medical treatment, and I have not seen anything which suggests there has been any substantial interference with normal day-to-day activities unless one considers abstention from Coca-Cola and fruit juice to be an impairment in ordinary day-to-day activities. I do not regard it as such." (He himself has type 2 diabetes largely controlled by diet.)
What to take away?
The judge pointed out that the tribunal had held that a medicated diabetic would be treated as disabled even if there had been no episode showing a substantial interference with normal day to day activities, but that is not necessarily the answer as the issue is whether the Claimant was relevantly disabled to the circumstances in question.
The decision suggests that those with type 2 diabetes controlled by diet are not disabled, and also neither are those with food allergies and intolerances according to the judge. Nevertheless, in each case the condition should be considered against the statutory definition of disability and the Guidance. The decision contrasts with paragraph B14 of the Guidance, which states that "… in the case of someone with diabetes which is being controlled by medication or diet should be decided by reference to what the effects of the condition would be if he or she were not taking that medication or following the required diet". It would be dangerous to assume that in all cases, those with a diet controlled condition cannot be disabled.