Taylor v Ladbrokes Betting & Gaming Ltd UKEAT/0353/15
In the UK, more than 2.7 million people are diagnosed with type 2 diabetes whilst a further 750,000 people are believed to have the symptoms but are yet to be diagnosed with the disease.
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.
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. The Guidance 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.
Paragraph 8 of the Guidance says that an employee will be deemed to have a disability under the Act if they have a progressive condition and can show that, as a result of that condition, they have an impairment which has or had some effect on their day-to-day lives, and that the condition is likely (“could well happen”, said the Supreme Court in Boyle v SCA Packaging 2009) to result in an impairment having a substantial adverse effect.
In Metroline v Stoate (2015), the EAT (a judge who himself had type 2 diabetes) held that an employee with type 2 diabetes was not disabled within the meaning of the Equality Act 2010, since abstaining from sugary drinks such as orange juice and Coca-Cola was not medical treatment, and so the effect of the impairment on the individual’s normal day to day activities should be assessed as his condition was controlled by his managed diet.
In this case, the EAT was again asked to consider if those with type 2 diabetes should be protected by the Equality Act: here, whether it was a progressive condition to be considered a disability.
The Claimant suffers from type 2 diabetes. After his dismissal in November 2013, he brought claims for unfair dismissal and disability discrimination.
At the preliminary hearing to determine whether or not the Claimant was disabled, the Employment Tribunal considered a medical report from Dr Hurel, a consultant with a special interest in diabetes, which said the Claimant’s condition during 2012 and 2013 would have no adverse impact on the Claimant’s ability to carry out normal day to day activities without his medication and his condition was easily controllable by lifestyle changes. The Employment Judge found that (especially if the Claimant took Dr Hurel’s advice about basic lifestyle changes) there was only a small possibility of the condition progressing. He concluded that the Claimant’s condition did not fall under paragraph 8 of the Guidance and therefore, he was not disabled.
The Claimant appealed to the EAT, arguing the employment judge had misinterpreted paragraph 8 of the Guidance, that the medical evidence did not support the finding that there was only a “small possibility” of progression, that the effect of lifestyle choices should be disregarded, and that there was inadequate evidence to support the conclusion that without medication, he would not suffer any deterioration.
The EAT (HHJ Hand QC) held that paragraph 8 is intended to ensure that those diagnosed with a progressive condition who may eventually suffer a substantial adverse effect on their normal day-to-day activities are protected before they reach that stage.
The employment judge’s analysis that the Claimant had not taken the basic steps which might be reasonably expected of him, a reference to paragraph B7 of the Guidance, was not one which should be considered under paragraph 8 on progressive conditions. The proper question for the judge was instead “Would a doctor consider there is a chance of this condition resulting in the claimant having a substantial impairment?” Dr Hurel’s report concentrated on the Claimant’s condition and its impact during 2012 and 2013, and did not go into detail about what effect it might have in the future, but did say that type 2 diabetes could lead to other conditions. Even a small possibility of deterioration is enough to make it likely that the employee may suffer the required impairment in the future. The employment judge had not properly addressed the question of a progressive condition and, as a result of the medical evidence, the condition had only been analysed in terms of the past rather than looking to the future. It was not clear from Dr Hurel’s evidence what the likely progression would be.
What to take away
Metroline suggested that those 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. It would be dangerous to assume that in all cases, those with a diet controlled condition cannot be disabled.) This case offers another route to establishing type 2 diabetes as a disability, by asking if the individual’s condition is progressive.
To succeed in any such claim, there must be sufficient medical evidence and it is important to ask questions not just establishing the current effect of the condition, but of its prognosis.
The case asked whether the issue of an individual’s own reasonable behaviour in managing their condition should be taken into account, but did not provide an answer. In Metroline, the EAT was clear that it was perfectly reasonable to abstain from sugary drinks, and implied that individuals should take responsibility for their own condition. In cases such as Kaltoft v Kommunernes Landsforening, acting on behalf of the Municipality of Billund (2014) however, it has been stated that the cause of a person’s obesity should not be taken into account and it is the effect of that condition which is crucial (and, for example, alcoholism is expressly excluded from the Equality Act, but conditions resulting from alcoholism may be disabilities in their own right).
While the law in this area remains unclear, it should not be assumed that those with type 2 diabetes are protected from discrimination. This is in contrast to the decision in Copal Castings v Hinton (2004), where the EAT found that type 1 diabetes was more serious than type 2, and that an employee with type 1 diabetes would have been placed at a substantial disadvantage and his employer would have been under a duty to make reasonable adjustments (under the Disability Discrimination Act 1995).