Diet controlled Type 2 Diabetes is not a Disability

Diet controlled Type 2 diabetes does not amount to a disability under the Equality Act 2010 (EqA 2010) according to a recent finding by the Employment Appeals Tribunal (EAT) in Metroline Travel Ltd v Stoute.

Facts

Mr Stoute suffered from Type 2 diabetes, which he controlled by following a diabetic diet. This involved avoiding sugary foods such as fizzy drinks. When he was dismissed for gross misconduct by Metroline he brought claims for unfair dismissal, 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 EqA 2010, having regard to paragraph B12 of the EqA 2010 guidance, which states 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.”

Notwithstanding this, at the full merits hearing Mr Stoute’s claims were dismissed.

Although Mr Stoute’s claims had already been dismissed Metroline appealed against the decision at the preliminary hearing. Metroline claimed that it had a workforce with a number of people who suffered from Type 2 diabetes and therefore the appeal was more than just academic. It stated that if the original judgment stood then it could be used by other employees to support an argument that they were disabled. Metroline also argued that the decision was of public importance. Mr Stoute was debarred from participating in the appeal.

The EAT allowed the appeal finding that Type 2 diabetes per se does not amount to a disability. It took the view that abstaining from sugary drinks was not sufficient to amount to a diet which could in turn amount to treatment. It pointed out that the EqA 2010 guidance made reference to the fact that where an avoidance strategy alters the effects of an impairment to the extent that they are no longer substantial, the person will no longer meet the definition of disability.

In addition the EAT made a costs order in favour of Metroline for Mr Stoute to pay the cost of their fees at £1,600.

Comment

Interestingly the judge in the EAT did not refer to B14 of the EqA 2010 guidance which says:

“…the case of someone with diabetes which is being controlled by medication or diet should be decided by reference to what the effects of the condition would be if he or she were not taking that medication or following the required diet.”

This case has been criticised on the basis that the EAT appears to have generalised the effects of conditions which are controlled by diets by suggesting that in all cases they would not amount to a disability. The EAT could simply have applied the statutory definition of disability with reference to the guidance. In doing so it would still have been possible for the EAT to find that Mr Stoute’s diet did not mean that he qualified as disabled under the EqA 2010 without saying that a diet-controlled condition can never amount to a disability.

The EAT’s decision on costs is also interesting as there does not seem to be any justification given as to why it thought Mr Stoute should be responsible for bearing the cost. Mr Stoute does not appear to have resisted the appeal and he was in fact debarred from taking part in it.

For more information, please contact a member of the Employment Team.

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