Employment Review: May 2015 – Type 2 diabetes does not amount to disability under the Equality Act

Under the Equality Act 2010, a person is disabled where they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The question in the recent case of Metroline Travel Ltd v Stoute was whether an employee with Type 2 diabetes, which was controlled by abstaining from sugary drinks, could be disabled.

Mr Stoute was employed by Metroline as a bus driver. After being dismissed for gross misconduct, Mr Stoute submitted a number of claims that included various allegations of disability discrimination. Metroline disputed that he was disabled.

The claim that his dismissal was connected to his disability was rejected. However the issue of whether he was in fact disabled proceeded to the Employment Appeal Tribunal (EAT) which found against him on that too.

Mr Stoute had controlled his Type 2 diabetes by avoiding sugary drinks. The EAT held that Type 2 diabetes did not amount to a disability per se and abstention from sugary drinks did not constitute a substantial adverse effect on day-to-day activities, within the meaning of ‘disability’ in the Equality Act 2010. Most importantly it was not considered that abstaining from sugary drinks amounted to a ‘treatment or correction’ that must be ignored when assessing the effect of an impairment.

Comment

The EAT’s view appears to conflict with the Equality and Human Rights Commission’s guidance on the definition of disability, which states that the question of whether a person’s diabetes causes a substantial adverse effect “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”. Arguably the EAT focused too much on the perceived ease with which diabetes may be controlled without properly analysing the effects of failing to follow a certain diet.

Its view that avoiding sugary drinks could not amount to a particular diet also seems open to challenge. If the EAT had decided that abstaining from sugary drinks was a ‘diet’ that amounted to treatment it would have had to consider what impact the Type 2 diabetes would have had on Mr Stoute if he had not abstained. The medical evidence suggested that he would have then been at risk of suffering a hypoglycaemic attack. That would be likely to amount to a substantial adverse effect.

Whether in another case a particular ‘diet’ will be regarded as treatment remains open to question. Employers should therefore treat similar cases (nut allergies, lactose intolerance etc) on their specific facts and should not assume that a condition controlled by diet cannot be a disability for the purposes of the Equality Act.

---

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.