The Employment Appeal Tribunal (EAT) has recently considered whether type 2 diabetes was a 'progressive condition' and therefore covered by disability discrimination law.
The legal framework
Under the Equality Act 2010 (the 'Act'), a person can only claim disability discrimination if they can show that they are 'disabled'. Under the Act there is a legal definition of disability which provides that a person has a disability if they have,
'a mental or physical impairment which has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.'
Individuals suffering from conditions that are deemed to be progressive in nature (that is likely to get worse overtime) may still satisfy the definition of disability if they can show that their condition causes an impairment that has some impact on their ability to carry out day to day activities and that it is likely that the condition will result in future substantial adverse effects.
In 2009 the Supreme Court held that 'likely' in this context meant 'could well happen'.
In an earlier case, Metroline Travel Limited v Stoute, the EAT held that an individual suffering from type 2 diabetes capable of being controlled through an abstinence of sugary drinks was not disabled.
In Taylor v Ladbrokes Betting and Gaming Ltd, the claimant had been dismissed in November 2013 by reason of incapacity or misconduct. Following his dismissal the claimant alleged that he had been suffering from a disability (type 2 diabetes) for a period of nearly 12 months prior to the dismissal. He claimed unfair dismissal and disability discrimination.
The employer obtained a report from a physician with a particular interest in diabetes. The questions posed to him and the information provided largely related to the impact that the condition had had on the claimant during the pre-dismissal period. Little consideration appeared to have been given to the likely future impact of the condition.
On the basis of the information available, the Judge in the employment tribunal determined that the condition was one which could be managed through diet (as in Metroline) and consequently it was not likely to progress into a condition that would have a significant impact on normal day to day activities. The tribunal found in favour of the employer and the claimant appealed.
The EAT overturned that decision and sent the case back to the tribunal for a re-hearing. It held that the original Judge had been wrong to link the question of condition management and whether or not the condition was likely to progress into a more serious condition.
The EAT identified that the medical evidence focussed too readily on the period before the dismissal and should have given more consideration to the question of progression. Where there is real prospect of the condition worsening, the test of 'likelihood' is made out and the requirements of a disability will be satisfied.
A distinction must be made between those conditions where lifestyle and diet are able to manage the condition (at which point it will not be a disability) and conditions that are likely to worsen in the future. It is too easy to say that a condition that can be managed without treatment will not be likely to progress into one that has a serious impact on normal day to day activities without appropriate evidence. The EAT also questioned the Judge's argument that it would be unreasonable conduct by the claimant if he failed to manage the condition through modification to his lifestyle.
Points to note
This case throws up a number of points for consideration by employers:
- When facing a claim of disability discrimination, it is not only vital for the employer to obtain appropriate medical advice but, it is of equal importance to ensure that the correct questions are considered by the doctor. Only then will the evidence be of assistance to the parties and to the employment tribunal in determining the decision.
- We now have two EAT cases dealing with type 2 diabetes that potentially conflict with each other. Although we await the tribunal's decision in the re-hearing of Taylor, it is possible that the judiciary will not be inclined to find that those suffering from type 2 diabetes are protected by the Equality Act 2010. While this may prove to be the case, it will still be important for employers to obtain the necessary evidence to show that in their case, the condition does not satisfy the requirements of the legislation.
- When dismissing an employee, be sure that you take all factors into consideration so that allegations of disability discrimination are not raised after the decision to dismiss has been taken.