Type 2 Diabetes... A Disability or Not?
This was considered by the Employment Appeal Tribunal (EAT) in the recent case of Taylor v Ladbrokes Betting and Gaming Ltd.
The Claimant, Mr Taylor was dismissed by his employer Ladbrokes on 4 November 2013 and brought claims of unfair dismissal and disability discrimination on the grounds of his type 2 diabetes. Expert medical advice was sought by a consultant specialising in diabetes who concluded that the diabetes was controlled by medication and even if this medication was not taken, the diabetes would not have any adverse impact on Mr Taylor’s ability to carry out normal day to day activities. The expert further added that the condition could easily be controlled through diet, exercise and lifestyle. Mr Taylor had not taken basic steps required of him to improve his lifestyle.
Under the Equality Act 2010, a person is considered to have a disability if they meet the following requirements:-
- Physical or mental impairment
- Substantial and long-term
- Adverse effect on ability to carry out normal day-to-day activities
Based on the medical evidence available along with the expert opinion, the Employment Tribunal (ET) took the view that there was only a small possibility of the condition progressing (if Mr Taylor made the necessary changes to his daily lifestyle) and therefore ruled that Mr Taylor was not disabled for the purposes of the Equality Act 2010.
The case was appealed to the EAT on the following grounds:-
- The ET had misinterpreted paragraph 8 of the Equality Act 2010 Guidance relating to progressive conditions;
- The conclusion of there only being a small possibility of progression was not supported by medical evidence;
- The effect of lifestyle choices should be disregarded in accordance with paragraph 5 of the Guidance; and
- There was insufficient information to show that in the absence of medication, the condition would not deteriorate.
The EAT allowed the appeal on the grounds that Paragraph 8 of the Guidance states that an employee whose condition is progressive and who in the foreseeable future may end up with a substantial adverse effect as a result of their condition deteriorating is deemed to be suffering from a disability. It was therefore necessary for the ET to consider not only the effect of the condition now, but also the likely effect of the condition in the future given that type 2 diabetes can lead to other conditions such as impaired vision, kidney disease and amputations.
The EAT concluded that that the ET had not sufficiently addressed the issue of progressive condition and that the consultants evidence rather focused on the adverse effect on day-to-day activities if the condition was correctly managed, rather than looking at what could happen in the future. For this reason, the EAT allowed the appeal and remitted the case back to the ET for rehearing.
This case also serves an important reminder of importance of asking the right questions to a medical expert. The key to this case was whether or not type 2 diabetes could be considered a progressive condition and subsequently whether the condition is affected or exacerbated by an employee’s failure to follow medical advice relating to diet, exercise and overall lifestyle.
Fact and Figures: statistics show there are currently around 3.2 million people in the UK who suffer from type 2 diabetes. Therefore the decision reached by the EAT in this case is of increasing importance to employers and employers should treat diabetes as a potential disability and seek legal advice on how to accommodate those employees who suffer from the condition before making rash decisions.