The Employment Appeal Tribunal has held that a bus driver who controlled his type 2 diabetes by avoiding sugary drinks was not disabled for the purposes of the Equality Act 2010.
Mr Stoute had been employed by Metroline Travel Limited for over 20 years. He was dismissed for gross misconduct and he brought claims against Metroline for unfair dismissal and a failure to make reasonable adjustments. At a preliminary case management hearing, the Watford Employment Tribunal found that Mr Stoute was disabled by reason of his type 2 diabetes. It is the case that someone suffering from type 2 diabetes may be at risk of a hypoglycaemic attack if he or she do not manage their blood sugar levels properly. It was understood that Mr Stoute could control (or correct) his risk of such an attack by avoiding sugary drinks. The Employment Tribunal considered the Equality Act Guidance and reached its decision. The Guidance provides that where any impairment, “is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect.”
On appeal, however, the Employment Appeal Tribunal found that it is difficult to see that what it described as a “perfectly normal abstention from sugary drinks” could be regarded as medical treatment or correction. Further, an enforced decision not to drink sugary drinks could not reasonably amount to an impairment of normal daily activities. The Employment Tribunal had also failed to consider a different paragraph of the Guidance when reaching its decision – the Guidance also states that account should be taken of how far a person can reasonably be expected to modify his or her behaviour (and gives an example of a person who needs to avoid certain substances because of allergies may find the day-to-day activity of eating substantially affected). Account should be taken of the degree to which a person can reasonably be expected to behave so that the impairment will not have a substantial adverse effect on his or her ability to carry out normal day-to-day activities. Therefore, irrespective of the fact that Mr Stoute suffered from type 2 diabetes, the Employment Appeal Tribunal held that he was not disabled for the purposes of the Equality Act.
Despite this decision, employers should not be cavalier and assume that an individual who suffers from type 2 diabetes will never satisfy the test for disability contained within the Equality Act. Not least because a later paragraph of the Guidance contains examples of the effect of treatment and how it should be considered. One example is, “the case of someone with diabetes which is being controlled by medication or diet should be decided by reference to what the effects of the condition would be if he or she were not taking that medication or following the required diet.” This example does not seem to have been considered by the Employment Appeal Tribunal. Following this case, it does appear, however, that a type 2 diabetic Claimant will need to show more than just an abstention from sugary drinks to control his or her condition to satisfy an Employment Tribunal that he or she is disabled.