Employment Law Update – Type II diabetes and disability

The Employment Appeal Tribunal (EAT) has considered whether a tribunal was correct to find that an employee with type 2 diabetes was not disabled under the provisions of the Equality Act 2010.

Taylor v Ladbrokes Betting and Gaming Ltd, EAT

Facts

T, who suffers from type 2 diabetes, brought claims for unfair dismissal and disability discrimination following his dismissal by his employer, Ladbrokes.

As a preliminary issue, the employment tribunal considered whether T was disabled for the purposes of the Equality Act 2010. Relying on written medical evidence by a consultant specialist, the judge found that T’s diabetes was controlled by medication. Even without taking the medication, the consultant considered that the condition would have no adverse impact on his ability to carry out normal day-to-day activities and could be easily controlled through lifestyle, diet and exercise.

The judge took the view that there was only a small possibility of the condition progressing, provided T followed the advice about lifestyle, diet and exercise. He therefore concluded that T was not suffering from a progressive condition that amounted to a disability.

EAT decision

The EAT allowed T’s appeal and remitted it to be reheard. The employment Judge had not properly addressed the question of whether he suffered from a progressive condition. The consultant’s evidence had focused on the effect of his condition on his existing ability to carry out normal day-to-day activities, rather than the likely effect in the future. Even if there is only a small possibility of deterioration, the EAT has suggested that it might be sufficient to make it ‘likely’ that the individual suffers from a progressive impairment for the purposes of the Act.

Consequences

Previous case law has established that a sugar-free diet should not be disregarded when assessing whether type 2 diabetes is a disability, as it is not a ‘medical treatment’. This case suggests instead that type 2 diabetes could be regarded as a progressive condition that amounts to a disability. However, neither type 1 nor type 2 is listed as an example of a progressive condition in the statutory guidance to the Equality Act 2010. It is by no means clear that sufferers of type 2 diabetes will be covered by the Act, and medical evidence will be of critical importance in such cases.

The content of this article is for general information only. For further information regarding equality in the workplace, please contact a member of Birketts’ Employment Law Team. Law covered as at February 2017.