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 whether the Claimant’s condition was progressive had been analysed in terms of a particular past period of time rather than in terms of how it might progress in the future.
It was not clear from the medical evidence provided by Dr Hurel whether the Claimant’s condition might be progressive. Neither was it clear whether there was only a small possibility of deterioration if the medication was disregarded. The EAT, therefore, remitted the case back to the Tribunal to reconsider the medical evidence, and properly assess whether the Claimant’s condition was progressive, and the extent to which the condition might significantly worsen in the future.
A point to note in this case is that the Claimant’s diabetes was effectively controlled by medication. Dr Hurel had been of the opinion that, even without medication, the Claimant could easily control his condition by means of diet and exercise. The Claimant, however, in the view of Dr Hurel, had failed to take these basic steps. The EAT did not answer the question of whether the reasonableness of the conduct of the Claimant in dealing with his condition should be taken into account when assessing the likely long-term effect of type 2 diabetes.
Whilst this case raises the possibility that claimants may be able to establish type 2 diabetes as a disability, neither type 1 or type 2 diabetes is currently given as an example of a progressive condition in the Equality Act 2010 Guidance, and it is by no means certain that such an approach would succeed.
This case highlights the importance of asking medical experts the right questions both when seeking guidance on how an employee with a potential disability might be supported, and when involved in litigation. Additionally, particularly in complex cases, medical experts should be available to attend tribunals in person.