Eat Considers Whether Type 2 Diabetes Is A Progressive Condition Under Equality Act 2010
In Taylor v Ladbrokes Betting and Gaming Ltd the EAT allowed an appeal against a tribunal's finding that an employee who suffered from type 2 diabetes was not disabled for the purposes of the Equality Act 2010. Mr Taylor, who suffers from type 2 diabetes, was dismissed by Ladbrokes Betting and Gaming Ltd on 4 November 2013 and brought claims of unfair dismissal and disability discrimination. At a preliminary hearing, an employment tribunal decided that he was not disabled. The EAT upheld an appeal, holding that the employment tribunal had misconstrued the proper test. 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. An impairment will be treated as having a substantial adverse effect on a person's ability to carry out normal day-to-day activities if: Measures are being taken to treat it or correct it; and But for the measures, the impairment would be likely to have that effect. The EAT held that type 2 diabetes, as a progressive condition, would amount to a disability even if it did not have a substantial adverse effect at that time, as long as it was likely that it would result in such a condition. This case suggests that there may be another route to establishing type 2 diabetes as a disability, following Metroline, which established that type 2 diabetes cannot be treated as a disability by disregarding the effects of a sugar-controlled diet. The unanswered question here is to what extent the individual's control over their own lifestyle should be factored in when assessing the long-term effect of type 2 diabetes. What is clear is that, on the basis of current case law, it should not be assume Continue reading >>
Uk Update – Type 2 Diabetes Controlled By Diet Is Not Automatically A Disability
This post was written by David Ashmore and Amy Treppass. In Metroline Travel v Stoute, the Employment Appeal Tribunal (“EAT”) decided that employees with type 2 diabetes controlled by diet (rather than medication) are not automatically protected by disability discrimination legislation. The Facts Mr Stoute was employed by Metroline and worked for them as a bus driver for 21 years. He suffered from type 2 diabetes. To keep his blood sugar levels low, he followed a low sugar diabetic diet which mainly consisted of avoiding soft drinks. On 11 March 2013, he arrived late at work and was dismissed for gross misconduct. He claimed that his late arrival at work was the result of diarrhoea, which was a consequence of his diabetes. Mr Stoute brought claims against Metroline of unfair dismissal, discrimination arising from disability, and failure to make reasonable adjustments. A preliminary hearing took place to determine if type 2 diabetes meant that he was disabled under the Equality Act 2010. The Employment Tribunal (“ET”) referred to a medical report where it was noted that for two periods of time, Mr Stoute was not taking medication which reduces blood sugar levels, but was following a controlled diet. In rendering its decision, the ET had regard to guidance from the Equality and Human Rights Commission on the definition of disability. The guidance provides that if a person suffers from an impairment and is undergoing treatment or correction for that impairment, then the impairment is to be treated as having a substantial adverse effect if, without the treatment or correction, the impairment was likely to have that effect. The ET decided that a controlled diet amounted to treatment or correction of an impairment, and that Mr Stoute was disabled within the meaning of Continue reading >>
To Tell Or Not To Tell?
A prospective employer isn’t normally allowed to ask you about your health or disability unless it’s strictly relevant to the tasks required of the job, or to make reasonable adjustments for you. It’s normally not essential that your work needs to know about your health unless it’s relevant to the tasks required in your job. But it’s important that your tell your employer about your type 1 diabetes if you want them to make reasonable adjustments, like taking breaks to check your blood glucose or treat hypos. Any medical information your employer holds about you is subject to strict data protection law. It’s up to you whether you want to tell your work colleagues about your type 1 diabetes. If you choose to tell them, you should be prepared for them asking questions or making comments, some of which may seem inappropriate. This is because many people don’t understand what type 1 diabetes means or they assume it’s treated in the same way as type 2 diabetes. Talking about how you developed your type 1 diabetes and how you treat it, can be helpful. Job interviews Again, it’s you choice whether you tell your prospective employers, but it does sometime have its drawbacks. While people with type 1 diabetes are able to do any job, some employers may be reluctant to employ someone with the condition due to misconceptions. For example, they may wrongly assume that people with type 1 diabetes can’t do a job that requires regular driving. It is possible to turn type 1 diabetes into a positive. People with type 1 have to be aware of the time, keep to a routine, follow a healthy lifestyle and attend regular clinic appointments. These are all qualities which demonstrate responsibility, self-discipline and organisational skills – traits that employers seek when re Continue reading >>
Is Diet-controlled Type 2 Diabetes A Disability Under The Equality Act 2010?
With the chocolate excesses of Easter fading from our memories and the lure of summer BBQs just on the horizon, it seems that life often has a tendency to focus around socialising and meal times. I have recently got back from a week’s holiday in France where we seemed to move from one meal to another (each lasting considerably longer than a meal time at home) with very little else in between! It is not therefore surprising that there have been several cases recently focusing on the health of employees and in particular their weight and whether certain weight-related conditions should be classed as a disability under the Equality Act 2010. We recently heard that obesity can, in some circumstances, lead to individuals being deemed to be disabled and the latest condition to cross the threshold of the Employment Appeal Tribunal is diet-controlled type 2 diabetes. The facts Mr Stoute was employed by Metroline Travel Limited and brought a claim for unfair dismissal and various discrimination claims. He claimed that he was disabled under the Equality Act 2010 as he had type 2 diabetes which he controlled by adopting a diet which avoided sugary fizzy drinks. I am sure everyone is familiar with the definition of a disability under the Equality Act 2010, but as a refresher, 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. There is guidance in the Equality Act 2010 which states that if someone has an impairment but they are receiving treatment for it, when trying to decide whether or not they are disabled the effect of the impairment should be considered based on what would happen if that treatment wasn’t taking place. A common exa Continue reading >>
Diabetes Type 2 Is Not A Disability Says The Appeal Tribunal
In the recent case of Metroline Travel Ltd v Stoute, the Employment Appeal Tribunal (EAT) has found that diet-controlled Type 2 diabetes does not amount to a disability under the Equality Act 2010. Mr Stoute had been dismissed for gross misconduct from his job as a bus driver. He suffered from Type 2 diabetes, controlled by following a diabetic diet which involved abstaining from sugary food and drinks. Failure to do so could result in a hypoglycaemic episode. When Mr Stoute was dismissed he brought claims for unfair dismissal, disability discrimination, and a failure to make reasonable adjustments. At a preliminary hearing, the employment tribunal held that Mr Stoute suffered from a disability within the meaning of the Equality Act 2010 and, in reaching its decision, referred to paragraph B12 of the Equality Act Guidance, which states: “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.” The employment tribunal felt that abstaining from sugary foods and drinks could be deemed to be a form of correction. Notwithstanding the decision that Mr Stoute was disabled, his substantive claims were subsequently dismissed. His employer, Metroline, nevertheless appealed against the decision on disability because they were concerned that other members of their workforce who had Type 2 diabetes might be encouraged to make claims on this basis. The EAT held that the employment tribunal was wrong to conclude that Mr Stoute (and, as a result, anyone with diet-controlled Type 2 diabetes) is disabled. It did not agree that abstaining from sugary foods/drinks could be regarded as “treatment or correction” or a substant Continue reading >>
Is Diabetes A Disability?
The Equality Act 2010 makes it illegal for employers to discriminate against someone simply because of their disability. The definition of disability is met if someone suffers with a physical or mental impairment that has a ‘substantial’ and ‘long-term’ effect on their ability to do normal daily activities. Guidance from the Equality Commission states that, you should disregard any ‘treatment or correction’, that improves or alleviates the effects of the disability. Case law has previously treated diabetes as falling within the definition of disability. However, in the recent case of MetrolineTravel Ltd v Stoute, the Employment Appeal Tribunal (EAT) made a distinction between those who suffer with Type 1 diabetes and those who suffer with Type 2 diabetes. The Claimant, Mr Stoute, was a bus driver who suffered from Type 2 diabetes, which he controlled largely by avoiding sugary drinks. The Employment Tribunal held that he was disabled within the meaning of the Equality Act 2010. The Respondent appealed and the EAT allowed the appeal on the basis that the Employment Tribunal had “misunderstood the concept of disability” under the Act. The EAT decided that the statutory guidance from the Equality Commission made clear that a condition controlled by a minor alteration of a diet was not a long term condition restricting the ability of the Claimant to carry out ordinary day-to-day tasks within the definition of disability. The EAT Judge concluded that that it would be difficult to see how a perfectly normal abstention from sugary drinks could be regarded as a medical treatment. He was therefore unable to agree with the Tribunal’s initial decision and held that the abstention from sugary drinks does not constitute a substantial adverse effect on day-to-day ac Continue reading >>
Is Type 2 Diabetes A Disability?
The claimant, Mr Taylor, lodged claims for unfair dismissal and disability discrimination after being dismissed by Ladbrokes Betting and Gaming Ltd. To qualify as a disability under the Equality Act 2010, the condition must have a substantial long-term adverse effect on the employee’s ability to carry out normal day-to-day activities. When considering Mr Taylor’s condition, the employment tribunal judge was told by a specialist that Mr Taylor’s type 2 diabetes could easily be controlled with modifications to his lifestyle, diet and exercise regime, and in the consultant’s view it would have no adverse effect on his ability to carry out normal day to day activities even without taking his medication. However, paragraph 8 of the Equality Act 2010 Guidance sets out that a person who suffers from a progressive condition that impairs their day to day activities, and which is likely to lead to a substantial adverse effect through deterioration, is deemed to be suffering from a disability before they reach that stage. Regarding the possibility that Mr Taylor’s condition was progressive, the employment tribunal judge felt that there was only a small possibility that this was the case. The EAT held that the medical evidence before the judge was insufficient for him to make an informed decision. The consultant’s evidence, though accurate, had not explored the possibility of Mr Taylor having a substantial impairment in future. The EAT judge noted that even if the possibility of deterioration was small, it should be considered ‘likely’. He remitted the case to the same tribunal judge for reconsideration. Gaby Hardwicke Employment Law Services Partner Paul Maynard commented: “It should be remembered that to be considered a disability a condition is viewed based on Continue reading >>
Diabetes And Employment: Adjusting To Work
Work provides fulfilment, self worth and income. "Reasonable adjustments" can help you stay on the job, employment lawyer Fiona Martin explains Millions of people with diabetes pursue active careers and most would not think of themselves as having a disability. But under The Equality Act 2010, if you have diabetes you may be covered by the legal definition of disability and be entitled to reasonable adjustments, to make your day-to-day working life a little bit easier. For legal purposes, disability can mean any physical or mental impairment that has a substantial long-term negative effect on a person’s ability to carry out normal day-to-day activities. How does this apply to diabetes? Type 1 diabetes The assessment is carried out before the effects of medication so Type 1 diabetes controlled by insulin or other drugs will be covered by the legal definition of disability. Rick Lockwood, “I always wanted to be cabin crew. I applied for one job and got it, but when they found out I was diabetic, they retracted the offer. I did finally get a job as cabin crew and had to prove I could manage my condition. “I have been advised to stay on English time and eat at the times I would if I was in England. I fly to America a lot, so I’m often five hours ahead or behind. “I have to check my blood a lot. It’s about being aware of your boundaries and managing your condition. I am quite a positive person, and that helps.” Type 2 diabetes Discrimination based on diabetes is often because of ignorance of the condition. The situation is less straightforward. In January 2015, the Employment Appeal Tribunal decided that, on the facts of that case, someone with Type 2 diabetes controlled by diet was not disabled under the Equality Act. The definition of disability is there to p Continue reading >>
Disability Discrimination: When Diabetes Is Not A Disability
Consultant editor Darren Newman considers a recent Employment Appeal Tribunal decision involving the concept of diabetes as a disability for the purposes of the Equality Act 2010. The case involved an individual with type 2 diabetes largely controlled by avoiding sugary drinks. Disability discrimination cases deal with a wide range of conditions, and the temptation is to divide these conditions into those that are, and those that are not, disabilities. However, this is not a very helpful approach. Disability is not a medical category; it cannot simply be diagnosed. It is a legal and social concept that depends not just on a person’s physical or mental condition, but also on the effect that this has on his or her life. Rather than considering whether or not a condition amounts to a disability, we should look at the effect that it has on the person and then decide whether or not that person is disabled. So, although the Employment Appeal Tribunal (EAT) – in Metroline Travel Ltd v Stoute – has held that type 2 diabetes is not a disability, we should regard this with caution. On close inspection, the case is a little more complicated than the headlines would have us believe. In the first place, what the EAT actually did was to overturn an employment tribunal finding that type 2 diabetes must by its very nature be regarded as a disability. Insofar as the tribunal said that, it was clearly wrong. The EAT also acknowledged that type 2 diabetes can be a disability depending on the impact that it has on a person’s ability to carry out normal day-to-day activities. What has raised eyebrows in the employment law world, however, is the basis on which the EAT held that the claimant in this particular case was not disabled. Continue reading the full analysis on diabetes as a Continue reading >>
Eat Decides Type 2 Diabetes Controlled By Diet Is Not A Disability
But the ruling is out of kilter with statutory guidance A recent Employment Appeal Tribunal decision in the case Metroline Travel v Stoute suggests it will be difficult for those with type 2 diabetes (or some other impairment) to show that the condition, in itself, constitutes a disability if they can eliminate its adverse effects by following a healthy, balanced diet. Under the Equality Act 2010, people will usually only be considered disabled if they have a condition which has a substantial and long-term adverse effect on their ability to carry out day-to-day activities. In assessing whether someone is disabled, the effect of measures to treat the condition must be discounted. The test is whether the condition could have a substantial effect on the individual’s daily activities if those measures were not taken. The Act makes it clear that the word ‘measures’ includes medical treatment, and the use of prostheses or other aids. But this is not an exhaustive definition and statutory guidance gives other examples, including counselling (for depression, for example) and the control of diabetes by diet. The last of these examples must now be treated with some caution, however, following the Metroline Travel case. Tribunal Stoute brought a disability discrimination claim following his dismissal for gross misconduct. One issue the tribunal had to determine was whether he was, in fact, disabled. He had type 2 diabetes, which he controlled by following a diabetic diet – avoiding sugary drinks, for example. The employment judge, referring to the statutory guidance, concluded it was necessary to look at the effect the condition would have on the claimant if he did not control his diet. On that basis, the judge ruled Stoute was disabled. EAT The Employment Appeal Tribunal Continue reading >>
Type 2 Diabetes – Can It Be A Disability?
The Employment Appeal Tribunal has upheld an appeal in Taylor v Ladbrokes Betting and Gaming Ltd, against the finding of an Employment Tribunal that an employee who suffered from type 2 diabetes was not disabled for the purposes of the Equality Act 2010. The case examines whether type 2 diabetes can be regarded as a progressive condition under the Equality Act 2010, and therefore be deemed to be a disability. In this case, the Claimant brought claims for unfair dismissal and disability discrimination. The Claimant stated that he had been disabled for almost a year before his termination as a result of suffering from type 2 diabetes. On the basis of two medical reports from Dr Steven Hurel, a consultant with a special interest in diabetes, the Employment Tribunal found at a preliminary hearing that the Claimant was not disabled. Dr Hurel did not attend as a witness at the Tribunal. The employment judge took the view that the Claimant’s condition had no substantial adverse effects on his ability to carry out normal day to day activities, and therefore he did not satisfy the test of disability under s6 of the Equality Act 2010 (EqA 2010). The judge also found that as there was only a small possibility of the Claimant’s type 2 diabetes progressing, particularly if the Claimant attended to his diet and exercised, so, therefore, the definition of a progressive condition in paragraph 8 of the Guidance to the EqA 2010 was not met. The Employment Appeal Tribunal (EAT) upheld the Claimant’s appeal against the decision of the Employment Tribunal. The EAT held that the Judge had not properly addressed the question of progressive condition. The medical evidence before the Judge had been inadequate and indeed misinterpreted by the Judge, with the result that the question of whe Continue reading >>
Laws That Protect People With Type 1 Diabetes
Federal Legislation has forever changed the way that individuals live with Type 1 diabetes and other disabilities. The fight to have governmental involvement in advocacy across the globe has been a slow and sometimes frustrating process, however it continues to progress. The United States: Americans with Disabilities Act The most far-reaching legislation for those with disabilities is the Americans with Disabilities Act (ADA). Passed in 1990, the ADA prevents discrimination against qualified individuals on the basis of disability. Under Title I of the ADA, private employers with 15 or more employees, states, and local governments cannot require a medical examination before offering a new employee a job. This means your future employer cannot ask you whether you have diabetes before hiring you. Furthermore, once hired, an employee with diabetes can request reasonable accommodations, such as extra breaks to eat, test blood sugar levels, or take medication. If such accommodations are not an undue hardship to the employer, the employer must fulfill the requests. Under Title II of the ADA, state and local governments must provide you with services that are not any different from those they provide people without a disability. They must not screen out or exclude you because of your disability and they must modify their policies and provide reasonable accommodations if necessary. For example, a courthouse should permit you to carry your diabetes supplies with you even if it means a modification of a general policy against allowing sharp objects and food. Under Title III of the ADA, providers of public accommodations, such as daycare centers and recreational programs, must provide you with services that are not any different from those they provide people without a disability. Continue reading >>
Disability Discrimination: Is Type 2 Diabetes A Disability?
The Employment Appeal Tribunal (EAT) has recently considered whether type 2 diabetes was a 'progressive condition' and therefore covered by disability discrimination law. The legal framework Under the Equality Act 2010 (the 'Act'), a person can only claim disability discrimination if they can show that they are 'disabled'. Under the Act there is a legal definition of disability which provides that a person has a disability if they have, 'a mental or physical impairment which has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.' Individuals suffering from conditions that are deemed to be progressive in nature (that is likely to get worse overtime) may still satisfy the definition of disability if they can show that their condition causes an impairment that has some impact on their ability to carry out day to day activities and that it is likely that the condition will result in future substantial adverse effects. In 2009 the Supreme Court held that 'likely' in this context meant 'could well happen'. In an earlier case, Metroline Travel Limited v Stoute, the EAT held that an individual suffering from type 2 diabetes capable of being controlled through an abstinence of sugary drinks was not disabled. The facts In Taylor v Ladbrokes Betting and Gaming Ltd, the claimant had been dismissed in November 2013 by reason of incapacity or misconduct. Following his dismissal the claimant alleged that he had been suffering from a disability (type 2 diabetes) for a period of nearly 12 months prior to the dismissal. He claimed unfair dismissal and disability discrimination. The employer obtained a report from a physician with a particular interest in diabetes. The questions posed to him and the information provided largely related t Continue reading >>
Can Type 2 Diabetes Be A Disability?
According to Diabetes UK, there are now 3.9 million people in the UK who are diagnosed with diabetes, and an anticipated 1.1 million currently undiagnosed. Type 2 diabetes is by far the most common type, with an estimated 90% of diabetics suffering from Type 2. In light of these alarming statistics, are employers required to make reasonable adjustments for type 2 diabetics in the workplace? What is Disability? Disability is one of the nine “protected characteristics” covered by the Equality Act 2010 (“the Act”). It is unlawful for an employer to treat those with disabilities less favourably than those without. In addition, employers have an obligation to make reasonable adjustments for disabled employees. The Act contains principles that employers should follow in their treatment of employees with disabilities. The Act defines a disability as a physical or mental impairment that has a substantial long-term effect on a person’s ability to carry out normal day-to-day activities. The Act does not refer to an exhaustive list of what will be considered as normal day-to-day activities, and rather will be determined on an individual basis. Applying common sense however, in the workplace, examples could include using a telephone or computer, writing, interacting with colleagues or following instructions. Similarly, what is considered to be a substantial and long term effect, is a question of fact and evidence but the Act provides the following guidance. The term “substantial” effect is an effect which is more than minor or trivial and an impairment will be treated as having a substantial adverse effect on a person’s ability to carry out normal day-to-day activities if, measures are being taken to treat or correct it and but for the measures, the impairment would Continue reading >>
Is Type 2 Diabetes A Disability Under The Equality Act 2010?
Home Bulletins Is Type 2 diabetes a disability under the Equality Act 2010? Employment & Pensions E-Bulletin Article There are two types of diabetes; type 1 which is insulin controlled and is usually found to satisify the definition of disability under the Equality Act 2010 and type 2, which can be controlled by diet or medication. This month the EAT has overturned an Tribunal's decision in the case of Metroline Travel Ltd v Stoute that an employee’s type 2 diabetes amounted to a disability under the Equality Act 2010. The EAT held that the condition, which was controlled by diet (i.e. by abstaining from sugary drinks), did not have a substantial adverse effect on the employee’s ability to carry out day-to-day activities. Facts The Claimant was employed by the Respondent as a bus driver from 24 February 1992 to 11 March 2013 when he was dismissed for gross misconduct. Whilst the Claimant's claims for unfair dismissal, discrimination arising from disability and failure to make reasonable adjustments were all dismissed and the EAT allowed the Respondent's appeal to be heard as it would affect other employees of the Respondent who also suffered from type 2 diabetes. The issue in the appeal focused on the effect of the condition of type 2 Diabetes on The Claimant's normal day to day activities and whether the effects on the Claimant meant that his condition fell within the definition of disability i.e. that it had a substantial adverse effect on their ability to carry out normal day to day activities. During the proceedings it was noted that a diabetic diet involves trying to avoid foods with a significant sugar content including sweets, chocolates and fruit juices etc, and that someone suffering from type 2 diabetes who does not properly manage his blood sugar levels m Continue reading >>