Type 2 diabetes controlled by diet…a disability or not?

15 Apr 2015 - And The Law Says
Type 2 diabetes controlled by diet…a disability or not?

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(Metroline Travel Ltd v Stoute)

Mr Stoute was employed by Metroline Travel Ltd (Metroline) as a bus driver for 21 years, before he was dismissed for gross misconduct. He suffered from Type 2 diabetes, and brought claims for unfair dismissal, discrimination arising from disability, and a failure to make reasonable adjustments. Although his complaints were dismissed, it was held at the preliminary hearing that Mr Stoute had a disability. Metroline appealed this decision, because it had a number of employees with Type 2 diabetes, and were concerned that others could use it to support a claim that they were disabled.

The Eat allowed the appeal, and held that Type 2 diabetes does not amount to a disability as per the legislation in the Equality Act 2010, where the guidance to a treatment for an impairment was not wide enough to encompass an abstention from sugary drinks.

So, what does this mean in relation to B14 of the EqA 2010 guidance, which states:

“…the case of someone with diabetes which is being controlled by medication or diet 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”?

Is the ruling likely to change for future matters?

Stephen Calderbank Says: The Employment Appeal Tribunal took the view that avoiding sugary foods and drink was not sufficient to amount to a diet, which could in turn amount to “treatment”.

It pointed out that the Equality Act guidance made reference to the fact that where an avoidance strategy alters the effects of impairment to the extent that it is no longer substantial, the person will no longer meet the definition of disability.

Interestingly the judge in the EAT did not refer to B14 of the Equality Act guidance.

This case was unusual in that the EAT appears to have generalised the effects of conditions which are controlled by diets by implying that in all cases they would not amount to a disability.

The EAT could simply have applied the statutory definition of disability with reference to the guidance and in doing so it would still have been possible to find that Mr Stoute’s diet did not mean that he qualified as disabled under the Act, without saying that a diet-controlled condition can never amount to a disability.

It will be interesting to see if this case is followed or whether it is subsequently said to turn on its own particular facts.

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