In the case of Taylor v Ladbrokes Betting and Gaming Ltd, the EAT considered the law regarding progressive conditions under the Equality Act 2010 for the purpose of determining whether type 2 diabetes can amount to a disability
The Equality Act 2010 provides protection for employees who are disabled: those having a physical or mental condition which has a substantial and long-term adverse effect on a person’s ability to carry out day-to-day activities. An individual with a ‘progressive condition’ will be disabled if the adverse effect on their day-to-day activities is currently less than substantial but is likely to deteriorate in the future resulting in an impairment having a substantial adverse effect.
However, if an individual can reasonably be expected to modify their behaviour to reduce the effects of an impairment, this will be taken into account and the individual may not fall within the definition of disability as a result.
Mr Taylor suffered from type 2 diabetes, which was controlled by medication and “lifestyle” changes. He was dismissed by Ladbrokes and subsequently brought claims of unfair dismissal and unlawful disability discrimination. He argued that type 2 diabetes should be treated as a progressive condition under the Equality Act 2010 and therefore deemed to be a disability.
The employment tribunal found that Mr Taylor was not disabled as his condition had no current substantial impairment and there was only a small possibility of the condition progressing and therefore it was not a progressive condition. He appealed.
The EAT upheld the appeal, holding that the employment tribunal had misconstrued the proper test: the correct approach was to consider whether Mr Taylor’s condition was “likely” to result in an impairment which has a substantial adverse effect in the future. The issue was whether the medical evidence suggested there was a chance of something happening. As the medical evidence was not clear on this, the EAT remitted the case back to the tribunal to reconsider the issue in light of further medical evidence.
In Metroline Travel Ltd v Stoute, the EAT held that type 2 diabetes, which can be controlled by a managed diet, does not in itself amount to a disability under the Equality Act 2010.
This latest case suggests that with convincing medical evidence, demonstrating the likely impact of type 2 diabetes in the future, it may be possible to establish that type 2 diabetes is a progressive condition.
However, it is by no means certain that this route will be successful (neither type 1 or type 2 diabetes is given as an example of a progressive condition in the Equality Act 2010 Guidance). Also the case did not address 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 given the incidence of type 2 diabetes within the general population (currently 3.2 million sufferers and rising), the question of whether diabetes is a disability is likely to be of increasing importance to employers. In view of the potential implications of recognising such a prevalent condition as a disability, a tribunal may be reluctant to make such a finding. However employers should err on the side of caution and not assume that type 2 diabetes does not amount to a disability, particularly before the Taylor case has been reconsidered.
David Potter
Partner
0845 274 6819