Disability Discrimination – diebetes and coping strategies

Type 2 diabetes is not a disability, according to The Employment Appeal Tribunal reported in the case of Metroline Travel Ltd v Mr Stoute (debarred).

The Facts

Mr Stoute was employed by Metroline as a bus driver when he was dismissed for gross misconduct.  Of note, apparently, his employment history included diverting his bus so he could go and buy some chicken kebabs.  Kebabs aside, however, the issue in this appeal was the effect of the condition of Type 2 Diabetes on Mr Stoute’s day to day normal activities.

Straightforwardly, the effect on Mr Stoute of his diabetes was that he followed a diet of avoiding, for example, sugary drinks. It was noted that a diabetic diet involves trying to avoid foods with a significant sugar content including sweets, chocolates, fruit juices etc. and 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.

On the legal issue of what can be called a disability, The Employment Tribunal had also noted from Guidance on the definition of disability put out by the Equality Commission, that the effects of any “treatment or correction” are to be disregarded when deciding if an impairment is likely to have a substantial adverse effect on a person’s ability to carry out day to day normal activities i.e. to meet the definition of disability under the Equality Act 2010. The Employment Tribunal concluded that, disregarding the diet, Mr Stoute could well suffer hypoglycaemic attacks and accordingly should be regarded having a disability.

Judge Serota QC, hearing the case on appeal, would have none of it.

What the Judge did have, he said, was his personal experience of suffering from Type 2 diabetes.  This had no effect on the Judge’s ability to carry out day-to-day activities other than to watch what he ate or drank and, in his view, “perfectly normal abstention from sugary drinks” could not be regarded as a medical treatment.

Comment

This decision is undoubtedly correct – at least on its facts. What had been overlooked in the Guidance was Paragraph B7 which says that when considering is someone has a disability:

“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. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of 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. Account should be taken of the degree to which a person can reasonably be expected to behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day-to-day activities.”

It would also follow that similar conditions, such as nut allergies and intolerance to lactose, do not normally amount to a disability.

However, employers should be careful not to assume that Type 2 diabetes and similar conditions will never amount to disability.  There was no evidence presented in Mr Stoute’s case of any effect on his daily activities than avoiding sugary foods.  If in another case there is evidence of further coping strategies, there will be a much keener focus on whether those coping strategies can be reasonably expected and whether there remains a substantial effect on the employee’s normal daily activities.