Welcome back to your weekly update. We can’t bring you sunny weather but we can bring you an interesting case on disability discrimination!

The Question today is:

Is diabetes type 2 classed as a disability?

Under the Equality Act you are disabled if you have a physical or mental impairment that has a substantial, adverse, long-term effect on your ability to carry out normal day-to-day activities.

This definition includes ‘progressive conditions’. That is a condition that doesn’t currently have, or hasn’t had, the requisite adverse effect, but which is likely to result in an impairment having a substantial adverse effect on a person’s ability to carry out normal day to day activities. This is a contested area of the law but this case suggests that type 2 diabetes could qualify as a disability on this basis.

The facts of the case:

Mr Taylor, the Claimant suffered from type 2 diabetes, which he controlled by medication. He was dismissed by Ladbrokes and bought proceedings against the company. At the preliminary hearing the tribunal considered whether he was disabled within the meaning of s6 Equality Act 2010. The judge was helped by medical reports from a consultant physician which said that diabetes caused hyperglycemia which was not a long-term condition if it was properly managed. However it also said that if the diabetes is poorly controlled the longer-term effects could be severe. The Judge interpreted the medical opinion as meaning that the claimant could easily control his diabetes by means of diet, lifestyle and exercise. If this was done the chances of it progressing was small. He concluded that the Claimant was not disabled. The Claimant appealed.

The EAT asked the question as to whether a Claimant with type 2 diabetes could claim to be disabled under the provisions on progressive conditions. The EAT allowed the appeal. The judge said that the medical evidence had not focussed on the right question and the ET judge had not taken into account the ‘low bar’ given to the question of whether the condition was likely to progress. He quoted the case of SCA Packaging Ltd v Boyle which said that the Claimant only had to show the effect ‘could well happen’. The matter was remitted back to the employment judge to reconsider.

The takeaway point:

Employers should take seriously any health-related concern raised by an employee regardless of how ‘disabled’ the employee might appear. An employee’s prognosis is important as well as their current condition. Particularly where diabetes type 2 is concerned. Medical experts need to advise very carefully.