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Type 2 Diabetes and the Definition of Disability

Whilst people suffering from cancer, multiple sclerosis or HIV are automatically deemed to be disabled for the purposes of the Equality Act 2010, in the case of other illnesses, whether or not a worker is disabled will depend on whether or not their condition has a long-term substantial adverse effect on their ability to carry out normal day-to-day activities. Where the effect is reduced or controlled by medication or medical treatment, its impact must be measured without reference to those improvements.

In a 2015 case (Metroline Travel Limited v Stoute), which dealt with claims brought by a bus driver who managed his Type 2 diabetes by following a diabetic diet, the Employment Appeal Tribunal (EAT) ruled that the condition does not amount to a disability per se. In reaching its decision, it referred to Paragraph B7 of 'guidance on matters to be taken into account in determining questions relating to the definition of disability', issued by the Office for Disability Issues. This states that 'account should be taken of the degree to which a person can reasonably be expected to behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day-to-day activities'.

A recent case on this topic (Taylor v Ladbrokes Betting and Gaming Limited) concerned a man with Type 2 diabetes who lost his job with a betting and gaming company. Mr Taylor alleged both unfair dismissal and disability discrimination. Following a preliminary hearing, however, an employment judge found on the basis of medical evidence that his diabetes did not amount to a disability as defined by the Act.

When considering whether the condition constituted an impairment that had a substantial and long-term effect on his ability to carry out normal day-to-day activities, the judge noted that it could easily be controlled if he were to follow advice in respect of modifications to his lifestyle, diet and exercise regime.

In ruling on Mr Taylor's challenge to the judge's decision, the EAT noted the importance of the issue, given the prevalence of Type 2 Diabetes in the general population. Lawyers acting for his employer had expressed concerns that it would open the floodgates were such a common condition, controllable by well-known and simple measures, classified as a disability.

In allowing Mr Taylor's appeal, however, the EAT found that the medical evidence before the judge was insufficient to enable him to reach an informed decision. He had been mistaken on one medical issue and there had been no adequate analysis of the condition's progressive nature or the extent of the possibility of it significantly worsening in the future. In the circumstances, the matter was returned to the same judge for reconsideration in the light of further expert evidence.

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