14 April 2015

Diet, Diabetes and Disability Discrimination

This article was written by Nicola Kerr (partner), Wyn Derbyshire (partner), and Jeremy Consitt (manager, KWM Employment Bridge).

It has long been assumed by many - employers and staff alike - that a worker who suffers diabetes would be classified as disabled. The mere medical diagnosis tends to be enough to spark employers into tremors in terms of making reasonable adjustments. 

A case from the Employment Appeal Tribunal has been in the headlines for appearing to challenge whether diet-controlled type 2 diabetes actually constitutes a disability. Although the EAT underplays the importance of Metroline Travel Ltd v Stoute ("… this particular case will scarcely ruffle the pages of the Willesden Gazette …” according to Judge Serota QC), the case has in fact attracted plenty of attention given the number of diabetes sufferers in the workforce today. 

But what does the case actually mean for employers?

First, the facts. Mr Stoute (a bus driver for Metroline with an already somewhat chequered work record) claimed that because he had type 2 diabetes he had a disability and consequently was discriminated against on that basis, having been dismissed for gross misconduct. The first hearing before an Employment Tribunal found that that Mr Stoute was disabled. The second hearing however found that the claims relating to a failure to make reasonable adjustments, discrimination arising from a disability and unfair dismissal should be were dismissed in their entirety. Metroline, despite having won all claims at the final hearing, still went to the EAT over the issue of whether Mr Stoute was disabled because having  a number of employees within its unionised workforce with type 2 diabetes, it was concerned they, might jump on the same bus as Mr Stoute.

In this case, the judge found that diet-controlled type 2 diabetes was not a disability. The judge appears to have considered whether the need to avoid fizzy and sugary drinks was itself an impairment and unsurprisingly decided it was not.

Can employers breathe a sigh of relief and assume that type 2 diabetes sufferers are not disabled? Well, not quite, for a number of reasons:

  • This decision has been criticised for appearing to generalise that medical conditions controlled by diet cannot be a disability. This appears somewhat at odds with the statutory guidance under the Equality Act which states that the issue of whether an individual has a substantial impairment “in the case of someone with diabetes which is being controlled by medication or diet 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” (paragraph B14) – in other words, medication and/or diet that are used to control an individual’s diabetes should be discounted in assessing the disabling effects of the medical condition itself. The EAT referred to some parts of the guidance, but not this paragraph.
  • Here, this decision appears to have been reached on the basis that Mr Stoute was relying only on his need to avoid fizzy and sugary drinks by way of impairment – there is no information in the judgement about what if any impairments he might have suffered were he not following that diet.  In other cases, more significant impairment may be cited which may produce a different result.
  • Even if this case is not appealed, this issue is likely to come before the courts again in some form, given the number of workers with diabetes in the UK. On different facts, the result may be different, particularly given the guidance referred to above.

What should employers do now?

Employers should not automatically assume that staff with type-2 diabetes are not disabled, but should apply their usual occupational health practices to them to assess whether they may fall within the statutory definition of disability. However, this case provides a dose of solid common-sense for employers: if the only impairment on an employee's day to day activities is the need to avoid fizzy or sugary drinks, they are unlikely to be considered disabled.

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