Is Type 2 Diabetes a Disability Under the Equality Act 2010?
Possibly, depending on the facts of the case and the medical evidence available.
The Employment Appeal Tribunal (EAT) overturned an Employment Tribunal's (ET) finding that an employee with type 2 diabetes was not disabled under the Equality Act 2010 (EqA) in Taylor v Ladbrokes Betting and Gaming Ltd.
Under the EqA a person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.
When considering what effect a particular condition has on day to day activities, the effect of any medication is ignored. However, if an individual can reasonably be expected to modify their behaviour to reduce the effects of an impairment, this will be taken into account and the individual may not fall within the definition of disability as a result.
Under Paragraph 8 of Schedule 1 EqA, an employee will also be deemed to have a disability if they suffer from a progressive condition which does not have a substantive adverse effect on their ability to carry out normal day to day activities, but this is likely to change in the future.
The Facts
Mr Taylor suffered from type 2 diabetes. He was dismissed from Ladbrokes on 4 November 2013 and brought claims of unfair dismissal and disability discrimination.
At a preliminary hearing, the ET relied on written medical evidence provided by a consultant with a particular interest in diabetes and found that Mr Taylor was not disabled under the EqA.
Mr Taylor appealed this decision to the EAT.
The EAT's Decision
The EAT Judge allowed Mr Taylor's appeal, finding that the ET had not properly addressed the question of whether type 2 diabetes could be regarded as a progressive condition under the EqA.
The EAT Judge noted that:
- the focus of the medical evidence before the ET had been on the effect of Mr Taylor's diabetes during the period under consideration in the discrimination claim. The evidence did not clearly address the likely effect of the condition in the future.
- even if there was a small possibility of a deterioration over time, that might be enough to amount to a progressive condition under Schedule 1 EqA.
The ET had drawn conclusions about the likelihood of Mr Taylor's condition developing over time and the impact that his life style would have without any clear medical evidence to support those conclusions.
The case was remitted for rehearing with oral evidence.
Best Practice
This case appears to suggest that with convincing medical evidence demonstrating the likely impact of the type 2 diabetes in future, it may be possible to establish that it is a progressive condition. In view of the potential implications of recognising such a prevalent condition as a disability under the EqA, a tribunal may be reluctant to make such a finding.
It should also be remembered that in Metroline Travel Ltd v Stoute, the EAT held that type 2 diabetes, which can be controlled by a managed diet, does not in itself amount to a disability under the EqA. In that case the EAT found that lifestyle issues (such as exercise and a controlled diet) could reasonably be expected to reduce the effect of the condition on day to day activities. This case also highlights the importance of ensuring that the right questions are asked of the medical expert.