Disability discrimination: Type 2 diabetes was not a disability
Published 13 April 2015
In this case the EAT considered whether an employee with Type 2 diabetes was disabled for the purposes of the Equality Act 2010.
The Claimant, Mr Stoute, was a bus driver for 21 years before being dismissed for gross misconduct. Following his dismissal he sought to bring a claim of disability discrimination. An employment tribunal decided at a preliminary hearing that he was disabled, because he had Type 2 diabetes referring to the fact that Mr Stoute took medication to reduce his blood sugar levels and avoided sugary drinks. The EAT allowed the appeal against the finding of disability. The EAT judge could not accept that abstention from sugary drinks constituted a substantial adverse effect on day-to-day activities, within the meaning of ‘disability’ in the Equality Act 2010. Nor was it the case that Type 2 diabetes amounts to a disability in itself.
It was noted by the EAT that, while a particular diet may be a ‘treatment or correction’ that must be ignored when assessing the effect of an impairment, abstaining from sugary drinks was not sufficient to amount to a diet and therefore could not be a treatment or correction for this purpose. The EAT went on to say that if a change in diet was all that is required for someone to be disabled then those with nut allergies and intolerances for glucose would also be covered, which would be perverse.
What this means for employers
It would be wrong for employers to assume, following this case, that all individuals who have Type 2 diabetes are not disabled. Each case will need to be examined on its own facts. While the EAT have given very strong guidance that abstaining from drinking fizzy drinks cannot in itself be a "diet", if other measures were taken as well as avoiding fizzy drinks, that could be sufficient to constitute a diet. The EAT's view that those with other allergies will not be disabled is questionable: the only allergy which is specifically excluded from being a disability by the Equality Act 2010 is hayfever. All other allergies would need to be assessed by applying the statutory formula. In some cases, it may be that, without the diet, the effects on the employee are still not sufficient to qualify as a disability. In others they may be.