Type 2 Diabetes – is it a Disability?

In the recent Employment Appeal Tribunal (EAT) case of Taylor v Ladbrokes Betting and Gaming Ltd, a claimant with Type 2 diabetes appealed the decision that his condition did not count as a disability for the purposes of the Equality Act 2010.

Type 1 & Type 2 Diabetes

Diabetes is a condition where the body cannot produce (or has difficulty producing) chemicals which turn sugar into energy. This leads to peaks and troughs in blood sugar which cannot be moderated by the body.

Diabetics fall into two types – Type 1 is usually diagnosed in childhood and the patient will have to manage their condition by injecting insulin for the rest of their life. Type 2 usually occurs later in life, and can occur as a result of eating too sugary a diet. Type 2 can be managed with medication and diet changes.

Legislation

By way of a brief reminder, under the Equality Act 2010:

• Someone has a disability if they have a physical or mental impairment, which has a substantial long-term adverse effect on their ability to perform day-to-day activities
• A progressive condition will count as an impairment if the condition is likely to result in the person having an impairment in the future
• Impairments are treated as having a substantial effect (even if measures are being taken to correct the impairment) if the impairment would be likely to have that effect if the measures were not taken.

Facts

The claimant, Mr Taylor, had been dismissed for incapacity/misconduct and brought claims for unfair dismissal and disability discrimination.

A preliminary hearing was held to decide whether the claimant, who has type 2 diabetes, was disabled. The Tribunal received evidence from the claimant, the respondent’s counsel and also the written evidence of a doctor. The Judge found that the claimant was not disabled.

The claimant appealed.

At the appeal hearing the EAT said that in making his decision the Judge had not properly addressed the claimant’s progressive condition. The claimant’s condition would be classified as a disability even if it was not having a substantial adverse effect at the time, if it was likely to have a substantial effect in the future.

The Judge had also not properly interpreted the medical evidence when he stated that there was a small possibility of the condition progressing. The examination of the medical evidence should not have looked at the chance of something happening to anyone with type 2 diabetes. The examination should have looked at whether the medical evidence suggested that something may happen to the claimant in particular.

The EAT said that overall the questions which had been asked of the medical expert were not ideal, as they asked for an analysis of a progressive condition covering a 1 year period of time which had already passed. Whilst the medical evidence provided to the Judge was far from ideal, it had still been incorrectly interpreted.

The appeal was allowed and the case was submitted to the same Judge for reconsideration.

What does this mean for you or your business?

Whilst this is not an unequivocal statement from the EAT, the case indicates that type 2 diabetes may be considered a disability for the purposes of the Equality Act 2010.

This means that any employee with type 2 diabetes may well have to be offered the same support processes as any other disabled employee. The employee could potentially require reasonable adjustments to be made to their working environment and their role. In the right (or should that be wrong) circumstances they could bring a claim for disability discrimination, which if successful could lead to a financial award from the Employment Tribunal. Unlike unfair dismissal this award is not capped and could potentially be very costly.

What do you need to be doing now?

This case serves as a useful reminder to keep in touch with your workforce. An employee’s file should ideally contain details of any medical issues which are on-going, so that you can take account of these issues when dealing with the employee and make reasonable adjustments if necessary. Whilst this information should of course be kept confidential, having the information on file can assist when dealing with employees who may be struggling at work due in part to a disability.

Having an open dialogue or open opportunity for discussion with any employees coping with health issues is also very important, as actions to help these employees can then be put in place as early as possible. This could potentially have positive benefits on both workforce productivity and employee welfare.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.