Employee with Diet Controlled Type 2 Diabetes Not Disabled

The EAT has ruled that an employee with diet-controlled Type 2 diabetes was not disabled for the purposes of the Equality Act 2010.

In Metroline Travel Ltd v Stoute, S suffered from Type 2 diabetes, which was controlled by following a diabetic diet. This involved him avoiding sugary drinks and foods with a significant sugar content. He brought claims for disability discrimination after he was dismissed. The employment tribunal had to determine whether he was disabled for the purposes of the Equality Act 2010 (“EqA”). This required it to consider whether his impairment had a substantial adverse effect on his ability to carry out normal day to day activities. 

The employment tribunal noted that government guidance states that where an impairment is subject to treatment or correction, the effect of the treatment/corrective measures should be ignored when determining this question. It considered that this meant that it should ignore the effect of the diet when considering whether S’s impairment had a substantial effect on his ability to carry out normal day to day activities. On this basis, it ruled that S was disabled. The employer appealed to the Employment Appeal Tribunal (“EAT”).

The EAT overturned the tribunal decision. Type 2 diabetes is not, in itself, a disability. In addition, a diet of abstaining from sugary drinks cannot be regarded as “treatment” for or “correction” of an impairment. It is not therefore something which should be ignored when considering whether the adverse effects of an impairment are substantial. 

The EAT also referred to another part of the guidance which indicates that a person may not be considered to be disabled if they can modify their behaviour so as to reduce the adverse effects of an impairment on their ability to carry out normal day to day activities. It ruled that the employment tribunal ought to have taken this into account. Presumably had it done so it would have concluded that S was not disabled. 

Although the EAT considered that a diabetic diet does not amount to treatment which can be ignored when assessing whether the adverse effects of an impairment are substantial, it overlooked another part of the guidance which seems highly relevant. This says that if diabetes is being controlled by medication or diet, you ignore the effect of the medication/diet when considering whether the adverse effects of an impairment are substantial. This suggests that the employment tribunal’s decision may well have been correct all along.

In any event,, each case needs be considered on its own facts to determine whether the effects of an impairment are substantial. Some people with Type 2 diabetes do not suffer any adverse effect on their ability to carry out normal day to day activities, whether they are following a diabetic diet or not. Such people would not be classed as disabled for the purposes of the EqA.