Diabetes and disability

02.03.2017

The EAT has decided in Taylor -v- Ladbrokes Betting and Gaming Ltd 2016 that the tribunal was wrong to find that an employee who suffered from type 2 diabetes was not disabled for the purposes of the Equality Act 2010. However, this was largely on the basis that the expert medical evidence used at first instance had been inadequate.
In an earlier case, Metroline Travel Ltd -v- Stoute 2014, the EAT held that type 2 diabetes does not in itself amount to a disability as ‘abstaining from sugary drinks’ did not constitute a medical treatment. As such, the effect of the impairment on normal day-to-day activities should be assessed with reference to the person’s condition when following the managed diet i.e. when the condition was under control (making it less likely that it would have a substantial adverse impact on normal day-to-day activities, and consequently less likely to amount to a disability).
In this case, the claimant sought to show that type 2 diabetes could amount to a disability via an alternative route, i.e. by showing that it was a progressive condition. However, the EAT found that the tribunal had failed to focus on the likely progression of the condition, largely because the medical expert’s report had not covered this area in sufficient detail. The EAT therefore held that the tribunal had erred, and remitted the case to the same employment judge for reconsideration. The EAT did not deal with the question of whether the individual’s willingness to make the suggested lifestyle changes (or lack thereof) was relevant.
While there remains scope to argue that Type 2 diabetes could amount to a disability, and the door to doing so has not been closed entirely, this case does illustrate that succeeding in such an argument is likely to be difficult. This is of interest because type 2 diabetes is a relatively common condition and something which employers are likely to come across. The case further highlights the importance of obtaining robust medical evidence and ensuring the right questions are asked.