The Employment Appeal Tribunal (“EAT”) ruled in Metroline Travel v Stoute that employees with Type 2 diabetes controlled by diet, rather than medication, are not automatically protected by disability discrimination legislation. Even if a medical condition is well-recognised (such as Type 2 diabetes) it is not sufficient for it to qualify as a disability under the Equality Act 2010 (“EqA”).
This case could potentially make it more difficult for employees suffering from conditions such as food allergies or intolerance to substances, who manage their conditions by avoiding certain foods or drinks, to claim they are disabled.
The claimant, Mr Stoute (“C”), was employed by Metroline Travel Limited (“Metroline”) as a bus driver for approximately 21 years. C suffered from Type 2 diabetes which he controlled largely by avoiding sugary drinks. After being dismissed for gross misconduct, C brought claims for unfair dismissal, discrimination arising from disability and a failure to make reasonable adjustments. At a preliminary hearing, the Employment Judge found that C was disabled for the purposes of the EqA by virtue of his Type 2 diabetes. The Tribunal referred to the medical report obtained from a Dr Darzy, noting that there were two periods when C was not taking medication which reduces blood sugar levels, and C had informed Dr Darzy that he had followed a diabetic diet by avoiding, for example, sugary drinks. The Judge referred to paragraph B12 of the EqA guidance, which states:
"…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".
Metroline appealed against this decision. Another division of the Employment Tribunal dismissed C’s claims but nonetheless, the EAT agreed to hear the appeal on the issue of disability, given Metroline’s legitimate concern that the decision that Type 2 diabetes would automatically amount to a disability might be relied on by other employees with the same condition. Metroline argued that the decision was of public importance.
The EAT ruled that the decision of the Employment Judge at the preliminary hearing was an error of law. The Judge held that it was difficult to see how a “perfectly normal abstention” from sugary drinks could be regarded as a medical treatment and there was nothing in this case to suggest that there had been any substantial interference with normal day-to-day activities.
The Tribunal had applied paragraph B12 of the statutory guidance but did not have regard to B7 which 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.”
The EAT noted that, while a particular diet may be regarded as something which is to be ignored when considering the adverse effects of a disability, abstaining from sugary drinks is insufficient to amount to a particular diet which amounts to treatment or correction. The EAT consequently held that diet-controlled Type 2 diabetes does not amount to a disability. In addition, the EAT made a costs order in favour of Metroline so that C had to pay Metroline’s EAT fees of £1,600.
However, employers might be sensible treating this decision with caution.
Although the EAT’s judgment indicates an individual with diet-controlled diabetes will not be treated as being disabled under the EqA, paragraph B14 of the EqA guidance on the definition of disability states:
"...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."
This part of the guidance was (oddly) not referred to in the EAT’s ruling and appears to conflict with the EAT’s view that diet-controlled Type 2 diabetes cannot amount to a disability.
This slightly odd EAT decision may have arisen from the (hopefully) unique facts. The claimant’s diet was strange in that he only abstained from sugary drinks, not other types of sugary foods, and this may have led to the EAT taking a harsher view.
Accordingly, as it currently stands , employees suffering with Type 2 diabetes who claim discrimination arising from disability, will need to point to more than just abstention from sugary drinks, as that in itself will not be regarded as sufficient evidence of a substantial effect on normal day-to-day activities for the condition to classify as a disability under the EqA.