Tag Archives: Disability

Secret disabilities

The definition of disability in the Equality Act 2010 is an expansive one. I have frequently found when representing workers who are being disciplined for their attendance records that frequently a worker is themselves ignorant that underlying health conditions they have are protected by the 2010 Act.

However, a similar issue is that when a worker is disabled they are often, for understandable reasons, reticent to disclose to their employer that they are disabled, this is especially relevant when the disability relates to a worker’s mental health. Aside from the natural privacy motivations for such a course of action most representatives will have experience of a worker disclosing disability only to then complain that their  managers  have begun treating them poorly after doing so.

When a worker makes a complaint of discrimination arising from disability (section 15 of the Equality Act 2010) one of the issues that must be demonstrated (because it will be a defence for the employer under section 15(2) of the Act) is that the employer knew about the claimant’s disability. The easiest way to do this is of course for the worker to disclose this to the employer, preferably in writing. For the reasons above an worker is often reticent to do this.

The fact that an employer has not been explicitly told a worker has a disability does not mean an employer does not have knowledge of it, however. In some case an employer will have what is called constructive knowledge of disability and if they do then they will have no defence to a section 15 claim on the basis of lack of knowledge.

The EHRC Code of Employment on the Equality Act explains that

5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a ‘disabled person’.

5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.”

What the principle of constructive knowledge means is that an employer cannot (in theory) know an employer may be disabled but intentionally avoid making reasonable inquiries of the employee of other sources of information so that they can maintain a later ignorance defence in the event of any future disability discrimination claims. However, as this post shows the EAT have just added a caveat to that general position.

ignoranceHowever, the question of when an employer can be said to have ‘constructive  knowledge’ of disability is  complex one and one, any worker would normally be best advised to avoid entirely by avoiding any issue of knowledge by informing the employer about the issue so that the issue of constructive knowledge never arises. The question of when an employer has constructive knowledge has recently been examined by the EAT in A Ltd v Z.

The claimant was disabled, at the time of the tribunal hearing this was accepted by all parties. However, at no time had the claimant informed the employer that she considered herself disabled. Whilst at work she had other disability related absences but at no time disclosed the real reasons for these absences. However, the employer did have some evidence that the claimant indicated there may be a disability. The employer had received fit notes describing “low mood”, had evidence from hospital that the claimant was expected to be an in patient for four weeks, and another fit note which referenced the claimant’s “mental health and joint issues”.

Despite knowing these issues the employer made no further inquiries into the claimant’s health and dismissed the claimant from her employment. The claimant alleged that her dismissal, for reasons that were in part connected to her disability, was discriminatory and that the employer had constructive knowledge of her disability. At the employment tribunal the claimant’s argument was accepted, with the Tribunal concluding:

48 For the purposes of our analysis, the key question is whether the Respondents had constructive knowledge on the date of the alleged unlawful act, namely the dismissal on 18 April 2017. We have recorded in our primary findings the recent information in the hands of the Respondents at the time of the dismissal. It included the GP certificates of 13 February and 27 March and the hospital certificate of 1 March. These materials, it seems to us, amounted to clear evidence that, over a period of more than two months up to the dismissal, during the entirety of which she was away from work, the Claimant experienced a significant deterioration in her mental state and there was a real question about her psychiatric health …  The Claimant’s silence on her mental health could not be taken as conclusive. It is notorious that mental health problems

The Tribunal also recognised the factual circumstances and made a decision that even if the employer had made enquiries of the claimant she would still have refused to disclose her disability but the fact that the employer failed to make a reasonable investigation into the possibility that the claimant was disabled was in this case sufficient to amount to constructive knowledge of disability.

On appeal however the EAT overturned this decision and this is explained succinctly:

The ET failed to apply the correct test, asking itself only what more might have been required of the Respondent in terms of process without asking what it might then reasonably have been expected to know. In this case, completing this exercise does not require me to engage in any exercise of substitution, still less to remit the case for further consideration. The ET’s later findings provide the answer: taking the additional steps that the ET considered would have been reasonable would have taken the Respondent no further; it could not reasonably have known of the Claimant’s disability.

The significance is that whilst it is true that a failure of an employer to make reasonable enquiries to ascertain whether a worker is disabled can form the basis for an employer’s constructive knowledge of disability it will not necessarily follow that it will. The focus of test in section 15(2) is on knowledge, not reasonableness. If enquiries into possible disability – however reasonable they are – would not result in the requisite knowledge then an employer be able to rely upon this to deny knowledge and, therefore, defeat the discrimination complaint.

This is not a helpful case for disabled workers who value their privacy. What it does mean that workers who are seeking to rely upon an employer’s constructive knowledge of their disability need to focus not just on the ways that an employer has failed to make reasonable investigations into a worker’s health but also on what knowledge conducting those investigations would elicit. Only if the enquiries would give knowledge will an employer have constructive knowledge.

In the case itself the worker did not have sufficient service to make an unfair dismissal claim but it is an interesting question as to whether, despite the failure of the discrimination complaint, the lack of unreasonable investigation would have been sufficient to render the dismissal unfair.

 

A Ltd v Z [2019] UKEAT 0273_18_2803, EAT

‘Correctable’ Disability

The definition of disability in the Equality Act 2010 has been covered a number of times in this blog, and comprises of four core requirements:

  • That the individual has a impairment; and
  • That this impairment affect their normal day to day activities; and
  • That this effect is substantial (which means more than trivial); and
  • That this has or is likely to be a long-term condition.

Sometimes a condition will be a disability even if all these requirements are not met, cancer is one example. However, conversely, some conditions even if they were to meet all four of the above requirements. These are set out in  The Equality Act 2010 (Disability) Regulations 2010 and the conditions range from Hay Fever to a tendency to set fires. However, in Schedule 1 paragraph 5 Parliament effectively added another condition to the prohibited list. 

The general position is that where a disability is treated and the treatment ‘cures’ the effect of the impairment then that is still considered a disability. So, for example, if a person had a mobility problem relating to their foot but, specialist footwear completely solved the problem then that would not stop the impairment being a disability under the Equality Act 2010, since the test is how the individual would be affected without the benefit of the treatment.

However, Paragraph 5(3) of Schedule 1 of the Equality Act introduces one exception:

Sub-paragraph (1) [that is the paragraph saying the effect of treatment or other measures should not be considered] does not apply—

(a) in relation to the impairment of a person’s sight, to the extent that the impairment is, in the person’s case, correctable by spectacles or contact lenses or in such other ways as may be prescribed;

So, if a person’s sight is ‘corrected’ by spectacles or contact lenses then they cannot be disabled even if the four criteria set out at the beginning of this post are met.

In Mart v Assessment Services Inc [2019] the EAT considered the scope of this case. Given the preceding summary the outcome of the case will not be a surprise but the case also provides a good reminder of the importance of careful identification of relevant issues.

Mrs Mart had diplopia, commonly referred to as double vision. She also experienced other long term conditions that may or may not have been linked to the diplopia. The facts around the originating employment tribunal is unclear as the EAT do not provide much detail and I have been unable to locate the original tribunal’s decision. However, the original claim was a claim of indirect discrimination and the disability claimed was diplopia.

In treatment of the double vision the claimant was prescribed contact lenses that did indeed correct her double vision. However, according to the claimant they had a side affect of harming her peripheral vision and causing a facial disfigurement. When making the claim however the claim expressly excluded a claim relating to depression and facial disfigurement (which can be a disability under the 2010 Act).

On the fact the EAT made two conclusions – first because the issue related to side effects of the treatment insofar as they were consequential to the treatment but were separate impairments could not be included. While the claimant could have argued that there were separate disabilities operative in the case she expressly chose not to and should have sought an amendment to the claim to include them.

Second,  because the double vision was indeed corrected by the contact lenses and since this was the impairment alleged to constitute a disability then applying paragraph 5(3)(a) the claimant’s sight problems were corrected by the treatment and so could not be a disability (this paragraph, it will be remembered, only applies to visual impairments that can be corrected by spectacles or contact lenses not to other disabilities).

The decision then is not in any way surprising but I think it is a useful by way of a reminder of the importance of ensuring all alleged disabilities are cited, not just in employment tribunal claims but also to employers. It is not not inconceivable that a more carefully pleaded case could well have had a different result. In this regard, the earlier decision of the EAT in Ginn v Tesco Stores Ltd UKEAT/0197/05 is helpful in its decision that for disability purposes the conditions that may not in themselves be disabilities can, when viewed together, amount to a disability.

 

 

 

Pre-Cancer

Just over a year ago the Employment Appeal Tribunal issued its decision in Lofty v Hamis t/a First Café  and in its wake there was a lot of online discussions about whether precancerous conditions come within the deemed disability provisions of the Equality Act 2010.

Normally, in order to be a disability for the purposes of the Act a worker must show that the physical or mental impairment substantially affects their normal day to day activities and that it has or is likely to last for 12 months or more. However, the Act recognises three conditions, Cancer, HIV and Multiple Sclerosis, that are automatically a disability regardless of whether at that time the other elements of the disability definition are met.

From a worker representative’s point of view this this will mean that so long as the diagnosis can be demonstrated then the employer will have no basis for disputing disability and so the task of moving to the question of whether discrimination occurred or reasonable adjustments are required is less problematic.

The case of Lofty concerned  whether a precancerous condition came amounted to a cancer. In 2014 the claimant became aware of a skin blemish on her cheek. This was diagnosed as lentigo maligna. The advice of her medical practitioners variously descried this as precancerous lesion or a non malignant in situ cancer. In other words, the examination identified that there were cancer cells resent but this was not at the time at risk of spreading although they may  develop into a lesion malignant melanoma (a skin cancer). The Employment Tribunal that heard the case determined that since her condition is precancerous it was not yet cancer and so not a deemed disability.

It was this decision that was challenged in the EAT. In overturning the employment tribunal’s decision the EAT note that paragraph 6 of schedule one of the Equality Act (which lists cancer as a deemed disability) does not distinguish between invasive and noninvasive cancer. The fact that the claimant had cancer cells present was sufficient to mean this was cancer, regardless of whether oncologists referred to these as precancerous because they were not invasive.

However, a reading of the judgement makes the suggestions of many law firms headlines that precancerous conditions are deemed disabilities is false, there are many precancerous conditions and it is not clear all will satisfy the standard set out in Lofty. Nonetheless, I think it can confidently be stated that if there are cancer cells present then that person will be disabled under the Equality Act.

What does this mean for workers and representatives?

There are I think a couple of points worth commenting on.

First, where there are cancer cells present then the person will (at the relevant time) be disabled and so any sickness or performance issues associated with this such as sickness leave flowing from surgery are likely to require reasonable adjustments (for example, treating post operative convalescence as disability leave).

Second, while not every precancerous condition is cancer this is a difficult area relying on specialist reports of biopsies and similar reports and it is probably helpful to argue the point, as many employers will reasonably take a cautious approach and consider disability likely.

 

Discrimination Arising from Disability and Unfavourable Treatment

The Supreme Court has recently issued its judgement in Williams v The Trustees of Swansea University Pension and Assurance Scheme, a case that brings to a close a long running employment dispute on the scope of the protection against discrimination arising from disability in section 15 of the Equality Act 2010. Specifically, the case centred on the question of what amounts to unfavourable treatment. For employees the decision is not a helpful one but being a decision of the Supreme Court and there being no indication of any ECJ reference it is an important one for employee representatives to be aware of.

Section 15 of the Equality Act 2010 sets out that it is unlawful to treat a person unfavourably for something arising from disability if that reason is not a proportionate means of achieving a legitimate aim.

The case is a relatively simple one but to understand what this case means a review of the factual background will be helpful.  Mr Williams was employed from 2000 until July 20913 when he was retired on ill-health grounds. He was 38 years old when he retired. His pension scheme provided that in the case of ill-health retirement there would be no actuarial reduction in his benefit, this essentially meant that his pension would  be calculated on the basis of what it would have been had he continued working until pensionable age. Part of this calculation considered the employee’s final salary at the time of retirement.

Before Mr Williams retired in order to try to manage his attendance at work with his disability Mr Williams was a part time worker. This meant that when calculating his pension entitlement the pension provider used the part time salary as the final salary. The core of the case was that the claimant alleged that the reason his working hours were lower, and therefore why he had a lower final salary was because of disability. Therefore, the decision of the pension provider to issue a lower pension was, according to the claimant, unfavourable treatment.

The respondent, by contrast, alleged that there was no unfavourable treatment at all and the facts show that the award of a pension was a positive a decision advantageous to the claimant.

On the question of unfavourable treatment the Supreme Court endorsed the decision of both the Employment Appeal Tribunal and Court of Appeal that the award of a pension was not advantageous.

In his final paragraph Lord Carnworth observes that:

The only basis on which Mr Williams was entitled to any award at that time was by reason of his disabilities. As Mr Bryant says, had he been able to work full time, the consequence would have been, not an enhanced entitlement, but no immediate right to a pension at all. It is unnecessary to say whether or not the award of the pension of that amount and in those circumstances was “immensely favourable” (in Langstaff J’s words). It is enough that it was not in any sense “unfavourable”, nor (applying the approach of the Code) could it reasonably have been so regarded.

There is of course a logic to that but I am afraid I am not persuaded. The suggestion that there is an “artificial” relationship between the decision to award a pension for ill-health and the method by which the amount of the pension is calculated seems to me to be divorced from the reality of what happens in such cases.

There are two comments in particular that I think are appropriate. The submission of the respondent that the pension would not have occurred bit for the disability seems questionable. There is no reason that a person working full time would not be medically retired, perhaps because their ill-health causes significant absences or performance concerns.

This observation leads to a second and more important observation. Frequently an employee who would likely be eligible for ill-health retirement will not want to be retired, they want to be useful and, as a means of doing that, will explore reduced working hours as a means of maximising the chance of working as long as possible. Is it right that an employee taking a decision such as this should do so in the knowledge that this becomes a gamble, and that if the adjustment (reduced hours) does not succeed they will be effectively penalised for this in reduced pension awards. Allied to this a more worrying risk is that some employer will actively ‘encourage’ employees who are disabled to reduce their working hours (under the guise of this being a reasonable adjustment) in the knowledge that the most likely outcome will be a reduced longer term pension liability to their disabled employees and the employees being in a much worse position than they would have been but for the employer’s reasonable adjustment.

 

Cases referenced:

Williams v The Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 65.

Access to Work Funding to be Cut

accessA mere six month’s ago a group of MPs reported that the Department of Work and Pension’s Access to Work scheme was failing to reach the people it needed and that further work was needed to increase its coverage. The then Minister for Disabled People Mark Harper MP (Con) encouraged all business to utilise the support Access to Work offered to businesses and disabled people in ensuring access to the workplace on the same terms as their non-disabled collegues.

Indeed, the last Government’s review of disability support (which resulted in the controversial closure of the Remploy factories) was gushing in its praise for the the Access to Work Scheme. In the then Government response to the Sayce Report which was endorsed by Ian Duncan Smith the government accepted that the Access to Work scheme was “cost effective” and the “best kept secret in government” and had the potential to assist disabled worker into employment. The fact that two years after the Remploy closures hundreds of the workers who lost their jobs remain out of work suggests that much more “cost effective” investment is needed.

It is then scandalous that one of the first acts of the new Conservative led government was to confirm a decision to slash funding for the scheme. Rather than provide a cost effective route to reduce benefit bills and increase disability employment the decision has been taken to slash funding. It is, I fear, the first in what will be a long line of cuts that a) harm society’s most vulnerable citizens and b) make little economic sense as they just push costs from one segment of the benefit bill to another. A reduced budget will mean more and more employers failing to take the risk on employing disabled staff as the cost of adjustments will be too onerous, especially for small businesses.

This is something trade unions need to start actively campaigning on.

Disability and Disciplinary Dismissals

disabilityIn recent weeks the Employment Appeal Tribunals judgement in Thomson v Imperial College Healthcare NHS Trust has been published. The key issue which has been attracting comment is the endorsement of the first tier tribunal’s decision that a dismissal may be unfair because of the choice of the decision maker, even when there is no accusation of bias, and the choice of the decision maker was entirely consistent with the employer’s disciplinary decision.

The decision is an important one to which I may return to in in a later article; however, the case also concerned a complaint of disability discrimination.The decision on this point is not ground-breaking in legal terms but it does I think raise some helpful issues for employee representatives dealing with disciplinary proceedings where disability is alleged to be a factor.

The claimant was a Consultant Neonatologist who was dismissed for bullying colleagues. She was at the time of the misconduct subject to a formal warning for misconduct but was dismissed for gross misconduct so the prior warning had little significance for the case. The claimant was also claimed she was disabled by reason of her dyslexia which the Respondent conceded at a Case Management Discussion. During the proceedings the claimant sought to suggest she was disabled by reason of her dyslexia and depression and following an amendment to the claim the claimant made a complaint that the Respondent had failed to make a reasonable adjustment for the claim.

The claimant alleged that the Respondent operated a “a practice of normally dismissing in the case of conduct found to be gross misconduct.” This was the provision, criterion or practice required by section 20(3) of the Equality Act 2010 that was alleged to place the claimant at a substantial disadvantage. The main contour of the allegation is found in the ET’s determination of this complaint, which is cited in paragraph 14 of the EAT’s determination:

Did the (valid) PCPs put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who were not disabled?  We have reminded ourselves of the wording of paragraph 48 of the amended Grounds of Appeal (quoted above).  The comparative disadvantage was said to arise from the alleged fact that the Claimant’s disability made her more likely to be found guilty of conduct amounting to or perceived as bullying.  That is to say more likely than persons who were not disabled.  Essential to the argument is the stated link between dyslexia and/or neurodiversity (the disability or disabilities pleaded) and the behaviour liable to amount, or be perceived as amounting, to bullying.  In our judgment, the insurmountable difficulty confronting Mr O’Dair is that the link is simply not made out.  Dr Harrison’s evidence in answer to Dr Mitchell’s first question was very clear (see above).  He makes no connection between dyslexia or neurodiversity and bullying behaviour or conduct which might be seen as harassment.  Nor does Dr Roberts offer any support for Mr O’Dair’s theory.  Subtle problems of perception and misreading of verbal cues are a world away from the sort of behaviour of which the Claimant was accused.  As the case progressed Mr O’Dair appeared to seek to overcome these difficulties by focusing on the evidence of Professor Harrison pointing to incipient depression.  But the obvious answer to that is that we are not dealing with a disability discrimination case based on depression.  No such complaint is before us.

 Dr Harrison’s answer referred to above was in respect to the question posed which was in “your opinion is it likely that the bullying and harassing behaviour are due to dyslexia?”. Dr Harrison’s answer was “I am unaware that dyslexia per se is considered to be a cause of bullying and harassment.  Indeed, I would say that the opposite is more likely to be the case, ie people with dyslexia may be the victims of bullying by others. Dyslexia may be associated with other conditions.  This has been termed neurodiversity.  Examples of other conditions include dyspraxia, dyscalculia, ADHD and Autism Spectrum Disorder. … As a consequence of having neurodiversity, low self esteem may develop leading to depression and anxiety.  People who are increasingly anxious or depressed may behave erratically and may display irritability and short temper and lack of tolerance of others.”

The EAT dispatched with this case quickly (and in my view correctly) as follows (paragraph 24):

So far as depression is concerned, on which Mr O’Dair places considerable reliance for his aggregation argument, on the evidence placed before the Tribunal we see from the later letter of 25 July 2012 from Professor Harrison to Mr Kuku, the BMA representative Senior Employment Advisor acting for the Claimant, the Professor’s  view of the Claimant’s anxiety was as follows:

“… Based on my own assessment, I had formed the view that she had developed an adjustment disorder including anxiety and depression.  Although I have not had contact with the MedNet psychiatrist, it appears that there is an external opinion that Merran is suffering from severe stress and reactive depression.  In my judgement I think this is due to the effect of the investigations that have taken place, the outcome of the first investigation which placed her on a final warning and concerns that more complaints have been made about her. …”

That is a clear opinion expressed that any anxiety and depression observed in the Claimant was caused by the processes which led to her dismissal.  In other words the investigations into her conduct and what happened thereafter.  They do not, in our judgment, lend support to a suggestion that the Employment Tribunal erred in failing to hold that the Claimant was suffering from depression at the material time, whether or not that was to be relied on as constituting the disability for the purpose of their claim before them standing on its own alongside the dyslexia or as amalgamated with it, as in the Patel case, resulting from dyslexia.  On the evidence before the Tribunal, in particular Professor Harrison’s letter of 25th July 2012, on whose previous letter considerable reliance was placed, Professor Harrison was of the view that such anxiety and depression was caused by the inquiry into the complaints against the Claimant and was not present at or before the events which led to the inquiry.

In short, the claimant’s disability, dyslexia, could not be held to have been a made the claimant more prone than she would have been but for her disability to result is misconduct action (and in turn dismissal) proceedings being instituted against her. Therefore, the link between the claimant’s disability and the alleged substantial disadvantage (greater likelihood of being dismissed) was simply not made out. In passing even if the link was made out is would appear to me that, following Griffiths v Secretary of State for Work and Pensions the claimant would still have been unsuccessful since substantial disadvantage could not be established since a non disabled employee would also have been dismissed in such circumstances. That is a fundamentally unfair provision and one can only hope that the appeal against the EAT’s decision in Griffiths is overturned when the Court of Appeal comes to issue its judgement on the appeal (heard in February I understand).

As I have written before there may be cases (and even cases of criminal misconduct) where a finding of deliberate or intentional wrongdoing owing to disability cannot be sustained and, therefore, a finding of gross misconduct is impermissible. These are likely to be rare, however.

Trade union reps are much more likely to encounter situations where a disabled person may be more likely to resort engage in misconduct offences than they would but for their disability. In such cases there are potential arguments of failure to make adjustments, discrimination arising from disability and indirect discrimination.

An example would be precisely the type of case alluded to in the medical evidence in Thomson. A person on the Auspergers Spectrum can sometime have difficulty in interpersonal relationships. This disadvantage, especially in times of heightened stress, can lead to raised voices and comments being made in anger/exasperation. I have seen this type of situation result in disciplinary proceedings.

It is in this context that the Thomson judgement serves as a useful reminder to reps. What seems apparent was the EAT had no difficulty accepting that a normal practice to dismiss was a provision, criterion or practice for the purposes of the duty to make reasonable adjustments under the Equality Act 2010 (and by implication also under section 19 of the Act). And so, where a person’s disability has an effect on their conduct but not to the extent where it gives a complete defense on culpability grounds (as in Burdett) there is still the prospect, even if a non disabled person would be dismissed for the same act for a claim to be made the application of that practice represented a failure to make adjustments and/or indirect discrimination.

Case references:

Thomson v Imperial College Healthcare NHS Trust [2015] UKEAT 0218_14_3001

Griffiths v Secretary of State for Work and Pensions EAT/0372/13

Burdett v Aviva Employment Services Ltd [2014] UKEAT 0439_13_1411

Is Diabetes Necessarily a Disability?

diabetesIf 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 counselling, 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 perverse 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.