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Should Diabetes Be Deemed a Disability?

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About The Author

Jade Rigby (Writer)

Jade is a third year Law student at Newcastle University. She is currently completely an Erasmus year abroad at Universitat Pompeu Fabra in Barcelona, Spain, and will return to Newcastle in 2015. Jade is predominantly interested in commercial law, but also writes on criminal and private law topics.

Image © Paul on Flickr

Recently, Employment Tribunals and the Employment Appeal Tribunal (EAT) have faced some tough challenges in relation to the Equality Act 2010.  Earlier this year, Keep Calm Talk Law’s Manprabh Basi discussed a recent decision which questioned whether overweight employees could be classed as disabled. Whether a health issue is classed as a disability can have a significant practical effect on both employees and employers, and employment tribunals face the daunting challenge of deciding whether to consider a range of disorders, diseases and afflictions in the future.

One such challenge arose in Metroline Travel Ltd v Stoute UKEAT/2015/0302. The central issue in this case was whether Type 2 diabetes amounted to a disability under the Equality Act 2010. 

Diabetes and Type 2 Diabetes

The NHS defines diabetes as a ‘lifelong condition that causes a person's blood sugar (glucose) level to become too high.’ The pancreas produces a hormone named insulin, which controls glucose levels in blood.

The two main types of diabetes occur when there are problems with this process:

  • Type 1 – when the pancreas doesn't produce any insulin
  • Type 2 – when the pancreas doesn't produce enough insulin or the body’s cells do not react to insulin

According to NHS figures, ‘in England in 2010, there were approximately 3.1 million people aged 16 or over with diabetes (both diagnosed and undiagnosed). By 2030, this figure is expected to rise to 4.6 million, with 90% of those affected having type 2 diabetes.’

Diabetes cannot yet be cured, but it can be managed. Maintaining a healthy lifestyle and taking medication can have a significant impact. For example, avoiding sugary drinks and exercising regularly can help to maintain healthy glucose levels in the blood.

It is important to manage diabetes in order to minimise the risk of suffering from complications. Diabetes complications could include skin infections and disorders, eye problems and nerve damage.

The Facts of the Case

Mr Stoute was employed by Metroline Travel as a bus driver between 24 February 1992 and 11 March 2013, when he was dismissed for gross misconduct. The EAT noted that the claimant had a ‘chequered employment history’, including diverting his bus ‘so he could go and buy some chicken kebabs’.

1. Stoute’s Claim

Following his dismissal, Mr Stoute brought claims for unfair dismissal to an Employment Tribunal. He stated that the discrimination arose from his disability, Type 2 diabetes, and his former employers had failed to make reasonable adjustments for him. For instance, Mr Stoute claimed that the side effects of the medication which he took meant that on one or two occasions he was late to work or unable to perform his tasks properly. Hence, he argued that these occasions should not have been held against him or damaged his employment record.

2. Metroline Travel’s Argument

In order to be protected by the Equality Act 2010, Mr Stoute must have an impairment that meets the Act’s definition of disability, or be able to establish that any less favourable treatment or harassment is because of another person’s disability or because of a perceived disability.

Metroline Travel submitted that that Type 2 diabetes does not per se amount to a disability within the meaning of the Equality Act 2010.

Secondly, as Mr Stoute could manage his diabetes by controlling his diet and intake of sugary drinks, the condition did not have a substantial adverse effect on his ability to carry out normal day-to-day activities. Additionally, it was argued that abstaining from sugary drinks does not constitute as treatment of a medical condition.

Employment Tribunal

At the preliminary hearing, the Employment Tribunal determined that Type 2 diabetes falls within the disability protections of the Equality Act 2010, even if a medicated diabetic had not suffered from an episode which had substantially interfered with normal day-to-day activities.

Metroline Travel were keen to pursue an appeal of the Employment Tribunal’s decision because of the precedent it could set for a large number of employees who suffered from similar medical conditions.

Metroline Travel submitted the Employment Tribunal had overlooked some statutory guidance. This guidance concerned what constituted treatment of a medical condition and what reasonable modification a person suffering from that condition could be expected to make. The appeal was accepted by the EAT.

Employment Appeal Tribunal

In order to uphold ‘transparency’ in his judgment, Judge Serota QC revealed that he also suffered from Type 2 diabetes. However, he held that:

It has in my case not only had no substantial adverse effect on my ability to carry out day-to-day activities; but I would suggest other than the fact that I need to watch what I eat or drink, none at all.

Additionally, Judge Serota QC labelled the decision of the preliminary hearing as ‘perverse’. Simply abstaining from sugary drinks does not substantially affect day-to-day activities. Hence, although it was accepted that ‘someone suffering from Type 2 diabetes who does not properly manage his blood sugar levels might be at risk of suffering a hypoglycaemic attack’, the judge decided that Type 2 diabetes does not ‘per se amount to a disability within the meaning of the Equality Act 2010’.

Although the judge thought that ‘this particular case will scarcely ruffle the pages of the Willesden Gazette, if there is such a thing’, the EAT’s decision does have some significant implications for employers and employees. Interpretation of statutory guidance provides some clarifications for potential claimants, including what actions constitute treatment of a medical condition and whether claimants are expected to modify their own behaviours. Additionally the exploration of the floodgates argument provides some security for employers against a rise of diabetes, obesity and related health problems.

Statutory Guidance

Guidance on the Equality Act 2010, which was first published in 2013, was critical for the resolution of this case.

In paragraph B7, the guidance sets out that courts and tribunals should take account of how far a person can reasonably be expected to modify their behaviour in order to prevent or reduce the effects of an impairment on normal day-to-day activities. It may be possible, for instance, for a person to behave in such a way that their impairment ceases to have a ‘substantial adverse effect’ on their ability to carry out day-to-day tasks and activities.

In paragraph B12, the guidance provides that ‘an impairment the subject of treatment or correction was to be treated as having a substantial adverse effect if but for the treatment or correction the impairment was likely to have that effect.’

Two questions arise from the application of this guidance:

1. What constitutes medical treatment?

The question here is whether abstaining from sugary drinks is sufficient to amount to a particular diet. The judge held that it is not, and therefore this does not amount to treatment or correction.

This conclusion seems to conflict with guidance from the Secretary of State, which Metroline Travel referred to:

Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities…

For example, a person who needs to avoid certain substances because of allergies may find the day-to-day activity of eating substantially affected.

A parallel could be drawn between this hypothetical person with allergies and Mr Stoute. Both may have had to alter their eating or drinking habits in order to avoid serious health risks. Additionally, as noted above, diabetes cannot be cured but can be managed. Hence, it seems perverse for Mr Stoute’s employment to be terminated due to the consequences of the side effects of his medication.

However, the parallel in question is limited. In this case, the EAT had to decide whether avoiding sugary drinks amounts to following a particular diet. Ultimately, it was concluded that removing sugary drinks from the claimant’s diet was not a substantial alteration. It would be too broad to hold that Mr Stoute followed a particular diet that substantially affected his day-to-day activities by merely removing one element of his daily diet.

Additionally, it is important to note the wider implications of deeming avoidance of sugary drinks as a ‘particular diet’. Although healthy eating is recommended by the NHS, it cannot be said that all diabetics follow a particular diet simply because they have reduced their sugar intake in some way. This would not reflect the reality of many diabetics, and categorising avoiding sugary drinks in this way could be extremely burdensome on employers.

2. What behaviours should a person with a medical condition be expected to modify?

The problem with answering this question is that there is a huge array of medical conditions, and individuals often respond differently to different treatments. For example, when taking medication, not every user will experience a side effect. Indeed, there may be a range of side effects, and these may vary in intensity for different people. Having time off work or flexible working hours may not be necessary for everyone, but may be critical to the health and welfare of others. The crux of the problem is that the law has to be generalised, whereas healthcare is individualistic.

However, this does not remove the need to find fair resolutions in cases such as this. For the EAT, taking into account what behaviours a person should be reasonably expected to modify enables the tribunal to find a balance in individual cases. There is no pre-determined ‘list’ of instances, which gives the law some flexibility.

In this instance, Mr Stoute avoided having a sugary diet. As previously noted, changing a few things about your diet is not a substantial alteration. Indeed, many people choose to do this without the threat of serious consequences relating to a medical condition. Hence, in this case it was not unreasonable to expect Mr Stoute to use a coping or avoiding strategy and thereby abstain from having sugary drinks, which would result in his impairment ceasing to have a substantial adverse effect on his ability to carry out normal day-to-day activities.

 Floodgates Arguments

The EAT responded to two forms of the ‘floodgates’ argument, which was particularly important for Metroline Travel:

1. Individuals

The EAT noted that the preliminary hearing judgment would allow more health conditions to be considered as disabilities within the meaning of the Act, meaning that:

any person suffering from Type 2 diabetes controlled by diet is to be regarded as disabled under the Act.  It would also mean that people with other conditions such as nut allergies, intolerance to lactose or what have you would also be regarded as disabled.

The EAT were concerned about the possibility of many cases being brought against employers. This decision may give employers more security against ‘opportunistic’ claims or cumbersome litigation which drains businesses’ resources. Similar speculations circulated following the ECJ decision that obesity may be classed as a disability.  However, this does not mean that individual circumstances will be overlooked by the EAT in the future. As medical conditions or healthy issues can vary drastically between individuals, this is particularly important in order to uphold justice and fairness.

For Baines Wilson LLP, It is relevant to consider that the Equality Act 2010 ‘sets out a technical meaning of ‘disability’ which does not necessarily correspond with common perceptions of disability.’ Although the Equality Act can be criticised for being ‘out of touch’ with public perceptions, a technical meaning is necessary in order to provide employers, employees and adjudication systems with a clear framework.

3. Trade Unions

Additionally, the appeal was labelled as ‘entirely academic’ because Mr Stoute had lost his substantive claims. According to Bond Dickinson LLP, the purpose of the appeal, therefore, was for clarification and communication, in order to prevent trade unions themselves from opening the floodgates:

Metroline employed a number of people who suffered from type 2 diabetes and it was concerned that, as the business was heavily unionised, it was a decision that could be used by other diabetic employees who might wish to have themselves recognised as suffering from a disability. Metroline also considered the decision to be of wider interest and importance.

This argument is subject to the advantages and disadvantages listed above, however it may be significant to note that Metroline Travel were concerned about ‘sending a message’ to trade unions. The appeal, therefore, was based entirely on employer security against such claims.

Ultimately, I do not think that the EAT were too narrow in their decision in this case. Although health conditions affect individuals differently, this should not place a cumbersome burden on employers. If small changes to your lifestyle are considered as medical treatment, and if there is no reasonable expectation for employees to try to minimise the effect of their conditions of their working life, then employers may be less willing to take on people who suffer with medical conditions, or face having to reallocate resources.

That is not to say that disabled employees should not be protected from discrimination, but the tribunals and court systems have a difficult task of balancing both parties’ interests. Employers and employees should both have to work towards a satisfactory resolution, rather than one party suffering. Although Judge Serota QC may not have thought that this case had much importance, it is clear that the message this appeal was intended to convey can have wide-reaching effects, and will hopefully prevent opportunistic litigation.  

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Tagged: Commercial Law, Employment Law

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