A recent EAT case (Metroline Travel Ltd v Stoute) indicates that Type 2 diabetes does not necessarily amount to a disability under the Equality Act 2010.
A person is disabled within the meaning of the Equality Act if 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. If ‘measures’ are being taken to treat or correct the impairment (specifically medical treatment, the use of a prosthesis or other aid) the effect of such measures are disregarded for the purposes of deciding if the person is disabled. This means that someone who may appear not to have substantial difficulties, can still be disabled, if their impairment is controlled by drugs. Medical treatments includes not only treatment by drugs, but also treatments such as counselling, the need to follow a particular diet and other therapies.
In this case, Mr Stoute suffered from Type 2 diabetes. At the relevant time he was largely controlling his diabetes by following a diabetic diet by avoiding, for example, sugary drinks. He was dismissed by Metroline Travel in circumstances that Mr Stoute claimed amounted to disability discrimination. The Tribunal at first instance found that Mr Stoute was disabled because, disregarding his diet, his impairment would have had a substantial adverse effect on his ability to carry out day to day activities.
On appeal on this point, the EAT held that Mr Stoute was not disabled as the abstention from sugary drinks was insufficient to amount to a ‘particular diet’ and therefore did not amount to a’ treatment or correction’ that should be disregarded.
The EAT also noted that the Equality Act Guidance states that if a person can reasonably be expected to modify their behaviour (e.g. by use of a coping or avoidance strategy) to reduce the effects of an impairment so they are no longer substantial, such person would no longer be disabled.
In our view, this decision is somewhat surprising as the diet Mr Stoute was following seems to fall within the ambit of ‘measures’ taken to treat an impairment. The critical question should have been whether, disregarding this treatment, Mr Stoute’s ability to carry out day to day activities was impaired.
It is quite rare for employers to challenge a claim that an employee is disabled. This case shows that it is not inevitable that someone with a well-known condition such as Type 2 diabetes will be found to be disabled. It also demonstrates the uncertainty of how medical treatments, diets and coping strategies will be treated by the Tribunal in relation to disability.