In Metroline Travel v Stoute, the Employment Appeal Tribunal (“EAT”) decided that employees with type 2 diabetes controlled by diet (rather than medication) are not automatically protected by disability discrimination legislation.
Mr Stoute was employed by Metroline and worked for them as a bus driver for 21 years. He suffered from type 2 diabetes. To keep his blood sugar levels low, he followed a low sugar diabetic diet which mainly consisted of avoiding soft drinks.
On 11 March 2013, he arrived late at work and was dismissed for gross misconduct. He claimed that his late arrival at work was the result of diarrhoea, which was a consequence of his diabetes.
Mr Stoute brought claims against Metroline of unfair dismissal, discrimination arising from disability, and failure to make reasonable adjustments. A preliminary hearing took place to determine if type 2 diabetes meant that he was disabled under the Equality Act 2010.
The Employment Tribunal (“ET”) referred to a medical report where it was noted that for two periods of time, Mr Stoute was not taking medication which reduces blood sugar levels, but was following a controlled diet.
In rendering its decision, the ET had regard to guidance from the Equality and Human Rights Commission on the definition of disability. The guidance provides that if a person suffers from an impairment and is undergoing treatment or correction for that impairment, then the impairment is to be treated as having a substantial adverse effect if, without the treatment or correction, the impairment was likely to have that effect.
The ET decided that a controlled diet amounted to treatment or correction of an impairment, and that Mr Stoute was disabled within the meaning of the Equality Act as a consequence of his type 2 diabetes.
The EAT’s decision
The EAT found that the ET had made an error of law in concluding that anyone with type 2 diabetes was automatically disabled under the Equality Act. In the EAT’s view, abstention from sugary drinks did not amount to medical treatment that had to be ignored when determining the issue of disability. The EAT also pointed out that a coping or avoidance strategy (such as a controlled diet) might result in the effects of an impairment being reduced to the extent they are no longer substantial, with the outcome that an individual is not disabled under the Equality Act 2010. The EAT also concluded that diabetes controlled by diet does not amount to an impairment or interference with normal day-to-day activities. The EAT allowed the appeal and ordered Mr Stoute to pay the appellant’s fees in full.
What does this decision mean for employers?
This is an interesting and potentially important decision. Type 2 diabetes is by far the most common type, with 90% of approximately 3.1 million diabetics in the UK having type 2 diabetes. This case illustrates the fact that even where a medical condition is clinically well recognised, that in itself is not sufficient for it to be a disability. This case will also likely make it harder for people suffering from nut allergies, lactose intolerances, etc., who manage their conditions by avoiding certain foods/drinks, to claim that they are disabled. Note that the EAT accepted that medicated diabetes sufferers (type 1 or type 2) are regularly considered to be disabled for the purposes of the Equality Act.