Is Diabetes Necessarily a Disability?

If a person has type 2 Diabetes are they necessarily disabled under the Equality Act 2010?

This was the question considered by the Employment Appeals Tribunal in Metroline Travel Ltd v Stoute [2015] UKEAT 0302_14_2601. The claimant had type 2 diabetes but was not on medication for this but did control his condition by controlling his diet, this basically comprised of the claimant avoiding fizzy drinks. The first tier tribunal made reference to the statutory guidance on the definition of disability which it was obligated to have due regard to. In particular, the Tribunal considered paragraph B12 of that guidance (emphasis added):

The Act provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’. The practical effect of this provision is that the impairment should be treated as having the effect that it would have without the measures in question (Sch1, Para 5(1)). The Act states that the treatment or correction measures which are to be disregarded for these purposes include, in particular, medical treatment and the use of a prosthesis or other aid (Sch1, Para 5(2)). In this context, medical treatments would include treatments such as counseling, the need to follow a particular diet, and therapies, in addition to treatments with drugs.

On the basis of that guidance the Tribunal determined at a preliminary hearing that the claimant’s avoidance of sugary drinks was “a particular diet” and, therefore, that the claimant was disabled for the purposes of the Equality Act 2010. However, the claimant was to lose the substantive hearing, and no appeal against that finding was made.   In the appeal judgement (which concerned only the statutory definition of disability) the judge disagreed; at paragraph 11 it was found that “abstaining from sugary drinks is sufficient to amount to a particular diet which therefore does not amount to treatment or correction.”

In coming to that view reference was also made to B7 of the statutory guidance, which states that a person may not be at impaired from carrying out normal day to day activities if they can reasonably amend their behaviour to avoid the impairment:

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.

In applying this paragraph the EAT also found (in addition to the finding that avoidance was not a particular diet that avoiding drinks such as Coca-Cola and Fruit Juices was a reasonable modification and that the normal day to day activity of eating and drinking did not have a substantial affect was not substantially affected (although how this was done without any regard to the personal circumstances of the (debarred) claimant I do not know. If you were a teetotal and unable to drink either a Coke or a Orange Juice because of Diabetes that does not leave much choice of liquid refreshment on an evening out! The effect of the avoidance may therefore be substantial, but this was ignored in the judgement.

Unfortunately, in Metroline there no opportunity for the Respondent (the claimant in the case) to put forward legal arguments and neither were there any representations (by the EHRC for example) made and so we are left with quite an unhelpful judgement. It seems a harsh decision to say avoidance of a particular very commonly consumed foodgroup is not “a particular diet” as the EAT said here; that would still leave the question of whether normal day to day activities were affected because avoidance was a reasonable modification which would be particular to the case in hand (but in the event was not considered).

Still, the judgement does throw into light the difficult question of what is reasonable modification; it is one I think there is very little guidance on for reps. It is also one prone for abuse by employers.  When making disability related complaints, particularly with conditions like diabetes, social anxiety, and stammering it would be worthwhile to spend a few moments considering whether there are modifications employers are likely to argue would be reasonable.

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