In Taylor v Ladbrokes Betting and Gaming Ltd (UKEAT/0353/15) the Employment Appeal Tribunal (EAT) allowed an appeal against the finding of an employment tribunal (ET) that an employee who suffered from type 2 diabetes was not disabled for the purposes of the Equality Act 2010. The case examines whether or not type 2 diabetes can be regarded as a progressive condition and whether this is affected by an employee failing to follow medical advice about lifestyle, diet and exercise.
There are currently around 3.2 million people in the UK who have type 2 diabetes. With this figure being predicted by Public Health England to rise to almost 5 million by 2035, the question of whether diabetes is a disability is of increasing importance to employers.
Under the Equality Act 2010, 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. If measures are taken by the person to correct or improve the impairment, they will still be considered to have a disability if the impairment is considered to have a substantial adverse effect even without the measures.
In Metroline Travel Ltd v Stoute (UKEAT/0302/14), the EAT held that type 2 diabetes, which can be controlled by a managed diet, does not in itself amount to a disability. This was because abstaining from sugary drinks was not a medical treatment and did not come under the definition of “measures”. The outcome of this case was that the effect of the impairment should be assessed with reference to the person’s state as controlled by the managed diet.
If a person suffers from a progressive condition and they can show that, as a result of the condition, they have an impairment which has or had some effect on their day to day activities and that the condition is likely to result in an impairment having a substantial adverse effect, then they will be deemed to have a disability. Guidance on this point is set out in Paragraph 8 of the Equality Act 2010 Guidance (the Guidance). In the case below, the EAT considered an employee's argument that type 2 diabetes should be treated as a progressive condition under the Equality Act and therefore deemed to be a disability.
Employment tribunal decision
Mr Taylor, who suffers from type 2 diabetes, was dismissed by Ladbrokes Betting and Gaming Ltd and brought claims of unfair dismissal and disability discrimination. At a preliminary hearing, an ET decided that he was not disabled. Relying on written medical evidence given by a consultant specialising in diabetes, the employment judge found that Mr Taylor’s diabetes was controlled by medication. However, even without taking the medication, the consultant’s opinion was that Mr Taylor’s condition would have no adverse impact on his ability to carry out normal day to day activities. His view was that his condition could be easily controlled through lifestyle, diet and exercise. The problems arose because Mr Taylor had not taken the basic steps reasonably required of him to improve his lifestyle.
As to whether the condition was progressive, the employment judge took the view that there was only a small possibility of the condition progressing, especially if Mr Taylor made the necessary changes to his lifestyle. His conclusion was that the condition was not progressive.
Mr Taylor appealed on the following grounds:
- The ET had misinterpreted paragraph 8 of the Guidance, regarding progressive conditions
- The conclusion that there was only a “small possibility” of progression was not supported by medical evidence
- The effect of lifestyle choices such as diet and exercise should be disregarded, under paragraph 5 of the Guidance
- There was inadequate evidence to support the conclusion that in the absence of medication, Mr Taylor’s condition would not deteriorate.
Employment Appeal Tribunal decision
The EAT allowed the appeal.
Paragraph 8 of the Guidance exists to ensure that an employee whose condition is progressive and who in future may end up with a substantial adverse effect, as a result of the deterioration of their condition, is to be deemed as suffering from a disability before they have got to that stage. It is therefore important to consider the likely effect of the condition in the future, rather than during the period under consideration in the discrimination claim.
Type 2 diabetes can lead to other conditions, especially when poorly controlled, such as ulcers, infections, impaired vision, kidney disease, gangrene and amputations. It can also increase the risk of heart attacks and strokes.
The ET’s analysis was that Mr Taylor had not taken basic steps to control his condition “which might reasonably be expected of him”. However, the EAT said that the ET should not have asked what was reasonable for Mr Taylor to do. The appropriate question to ask was whether the condition was likely to result in the employee having a substantial impairment. In other words, is there a chance of this happening?
On this point, the EAT found that the consultant’s evidence, while accurate, concentrated on the adverse effect on Mr Taylor’s day to day life if his condition was correctly managed rather than looking at what might happen in the future. The EAT judge observed that even if there was a small possibility of deterioration, then it should be considered “likely”.
The EAT concluded that the ET had not properly addressed the question of progressive condition. As a result of inadequate medical evidence, the condition had been considered at a particular point in time and not into the future, which was not the right approach. It was also not the case that without medication, deterioration of Mr Taylor’s condition was a small possibility. Rather, it was simply not clear from the evidence what the likely progression would be.
The EAT remitted the case to the ET for rehearing.
This case suggests that there may be another route to establishing type 2 diabetes as a disability. It should be noted that neither type 1 nor type 2 diabetes is currently given as an example of a progressive condition in the Guidance and it is not certain that this route would be successful.
This case illustrates the importance of asking the medical expert the correct questions and making sure that the likelihood of progression is considered. The unanswered question here was to what extent the individual’s control over their own lifestyle should be factored in when assessing the long-term effect of diabetes. However, it should not be assumed that a person’s failure to modify their lifestyle will be considered by an ET to be unreasonable.
Type 2 diabetes leads to 22,000 early deaths every year in England and costs the NHS £8 billion. Public Health England’s research indicates that one in four people with diabetes - nearly one million - are unaware of their condition and they are putting steps in place to increase early diagnosis. This is an increasingly serious problem for both the NHS and for employers. Employers should treat diabetes as a potential disability and seek medical guidance on how to accommodate the ever increasing number of employees who have the condition.