Can type 2 diabetes be a disability for the purposes of the Equality Act 2010 (EqA)? Yes, held the Employment Appeal Tribunal (EAT) in Taylor v Ladbrokes Betting & Gaming Ltd.
Legal Background
The EqA protects those with a disability from being discriminated against, harassed or victimised in the workplace due to their condition.
Under the EqA, a person is disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Impairments will be treated as having a substantial adverse effect if:
- Measures are being taken to treat them; and
- But for the measures, the impairments would be likely to have that effect.
Further guidance has been issued in relation to progressive conditions. This suggests that if a person can reasonably be expected to modify their behaviour in order to reduce the effects of an impairment, for example by implementing a coping or avoidance strategy, then this modification may reduce the effects of their impairment to the extent that they are no longer substantial.
Paragraph 8 of the guidance states that a person suffering from a progressive condition will be deemed to have an impairment with a substantial adverse effect on their normal day-to-day activities if they can show that:
- As a result of the condition, they have an impairment which has or had some effect on their day-to-day activities; and
- The condition is likely to result in an impairment having a substantial adverse effect.
Facts of the Case
Mr Taylor suffers from type 2 diabetes. He was dismissed by his employer, Ladbrokes Betting and Gaming Ltd, and brought claims of unfair dismissal and disability discrimination.
Preliminary Hearing Decision
At a preliminary hearing, the Employment Judge found that he was not disabled on the basis that his diabetes was controlled by medication. The Judge found that the principal purpose of the medication was to prevent the type 2 diabetes from progressions to the debilitating condition of type 1 diabetes. It should be noted that this finding is not medically correct and did not reflect what Dr Hurel, a consultant specialising in diabetes, stated in his evidence.
Dr Hurel stated that even without taking the medication, Mr Taylor’s condition in 2012 and 2013 would not have an adverse effect on his ability to carry out normal day-to-day activities. His view was that the condition could be easily controlled by making lifestyle, diet and exercise changes. He concluded that Mr Taylor had failed to take basic steps in this regard which could have reasonably been expected of him.
The Judge held that there was only a small possibility of the condition progressing, especially if Mr Taylor followed advice regarding lifestyle, diet and exercise. They therefore concluded that the definition of a progressive condition in paragraph 8 had not been satisfied.
Mr Taylor appealed the Judge’s decision on the following grounds:
- The Judge had misinterpreted the guidance regarding progressive conditions;
- There was no medical evidence to support the conclusion that there was only a small possibility his condition would progress;
- There was inadequate evidence to support the conclusion that his condition would not deteriorate in the absence of medication; and
- The effect of lifestyle choices should have been disregarded.
Employment Appeal Tribunal (EAT) Decision
The EAT held that the purpose of the aforementioned guidance is to ensure that those suffering from progressive conditions who may end up with a substantial adverse effect in future are deemed to be disabled before they have got to that stage. It is important to consider the likely effect of the condition in future, rather than only during the period under consideration in the claim.
With regard to the progression of type 2 diabetes, the EAT ruled that the fact that Mr Taylor had not taken steps to control his condition that might reasonably have been expected of him was arguably irrelevant. The proper question was whether the condition is likely to result in Mr Taylor having a substantial impairment i.e. whether a doctor would consider there is a chance of something happening.
Dr Hurel’s evidence concentrated on the effect of his condition in 2012 and 2013 and the fact it need not have an adverse effect if managed, and not on the likely effect of his condition in future. Further medical evidence was required in order to establish whether Mr Taylor was disabled for the purposes of the EqA.
The EAT concluded that even if there is a small possibility of deterioration, that is enough to make it ‘likely’ that it might result in the individual having such an impairment. The Employment Judge had not properly addressed the question of progressive condition, analysing the condition in terms of a particular past period instead of looking to the future prognosis.
Comment
Each case will be assessed on its facts and it is by no means certain that diabetes will be deemed to be a disability in all instances. Notably, neither type 1 nor type 2 diabetes are listed as examples of progressive conditions in the EqA guidance.
However, employers should be mindful of the fact that employees may now have another route to establishing type 2 diabetes as a disability following the above decision and they should ensure that they strictly adhere to their procedures when dealing with those employees with medical conditions.
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