In the recent case of Taylor v Ladbrokes Betting and Gaming Ltd, the Employment Appeal Tribunal considered the law regarding progressive conditions under the Equality Act 2010 for the purpose of whether an individual is disabled.
The Equality Act 2010 provides protection for employees who are disabled: those having a physical or mental condition which has a substantial and long term adverse effect on their ability to carry out day to day activities.
An individual will suffer from a ‘progressive condition’ and be disabled if the adverse effect on their day-to-day activities is currently less than substantial but is likely to deteriorate in the future resulting in an impairment having a substantial adverse effect.
The Claimant in this case, Mr Taylor, suffered from type 2 diabetes. He was dismissed by his employer, Ladbrokes, and brought claims of unfair dismissal and disability discrimination. The key question for the tribunal was whether his diabetes could be considered a progressive condition and therefore a disability.
The employment tribunal found that Mr Taylor was not disabled as his condition had no current substantial impairment and there was only a small possibility of the condition progressing and therefore it was not a progressive condition.
The Employment Appeal Tribunal (EAT) upheld Mr Taylor’s appeal. When considering whether a condition is progressive, the proper question is whether the condition is likely to result in the claimant having a substantial impairment. This is determined by whether a doctor would consider there is a chance of something happening in the future. Even a small possibility of deterioration is enough to make it ‘likely’ that it might result in the particular individual having such an impairment. The EAT found that the medical evidence did not go into detail on this issue and therefore held that this case should be reconsidered in the light of further medical evidence.
This case shows that a sufferer of type 2 diabetes, who does not currently suffer from a substantial impairment, may still be deemed to be disabled if they can show medical evidence of a progressive condition.
The rather surprising interpretation of the word ‘likely’ in this context to cover even a small possibililty demonstrates how the tribunals usually favour the finding of a disability.
The Equality Act 2010 guidance suggests that if a person can reasonably be expected to modify their behaviour to reduce the effects of an impairment on their normal day-to-day activities, they might not be considered disabled. This case does not provide any insight into how, when assessing the risk of future deterioration, a tribunal will take account of how the individual has or could have modified their behaviour by using coping or avoidance strategies.