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. A recent case in the Employment Appeal Tribunal (EAT) considered whether type 2 diabetes could qualify as a disability.
Mr Stoute, the claimant, was a bus driver with type 2 diabetes. Mr Stoute managed his condition mainly through limiting his intake of sugary drinks to control his blood sugar levels. The Employment Tribunal (ET) found that Mr Stoute’s diabetes amounted to a disability, but his employer, Metroline Transport Ltd (MT Ltd), appealed to the EAT.
The EAT judge, who had type 2 diabetes himself, felt the ET’s decision was perverse. In the EAT’s view, abstaining from sugary drinks could not be considered to have a substantial adverse effect on Mr Stoute’s day-to-day activities. Having regard to guidance issued by the Secretary of State on the definition of disabilities, the EAT noted that while a particular diet might constitute a treatment to be ignored when considering the adverse effects of a disability, it did not regard abstention from sugary drinks as amounting to a particular diet or, by extension, a treatment. The EAT felt that avoiding sugary drinks was a modification that a person could reasonably be expected to make to prevent impairment of normal activities.
While employers may welcome this decision, it is surprising that the EAT did not refer to the specific wording in the guidance relating to diabetes. The guidance 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.
Employers should treat similar cases on their specific facts and should not assume that a condition controlled by diet (whether diabetes, a nut allergy or lactose intolerance) cannot be a disability for the purposes of the Equality Act.