Type 2 diabetes controlled by diet is not a disability

2015-07-06 Philip posted:

But the ruling is out of kilter with statutory guidance.

A recent Employment Appeal Tribunal decision suggests it will be difficult for those with type 2 diabetes to show that the condition, in itself is a disability if they can eliminate its adverse effects by following a healthy, balanced diet.

Under the Equality Act 2010, people will usually only be considered disabled if they have a condition which has a “substantial and long-term adverse effect on their ability to carry out day-to-day activities”. In assessing whether someone is disabled, the effect of measures to treat the condition must be discounted. The test is whether the condition could have a substantial effect on the individual’s daily activities if those measures were not taken.

The Act makes it clear that the word ‘measures’ includes medical treatment, and the use of prostheses or other aids. But this is not an exhaustive definition and statutory guidance gives other examples, including counselling (for depression, for example) and the control of diabetes by diet. The last of these examples must now be treated with some caution, however, following the case of Metroline Travel v Stoute.

Mr Stoute brought a claim for disability discrimination after he was dismissed for gross misconduct. One of the issues the Tribunal had to decide whether he was disabled. He had type 2 diabetes, which he controlled by following a specific diet. The Employment Judge concluded after considering the effect the condition would have on the claimant if he did not control his diet that Mr Stoute was disabled. The employer appealed.

The Employment Appeal Tribunal took a different view. The decision was reversed ruling that abstaining from sugary drinks was not a particular diet and, therefore, did not amount to a measure taken to treat or correct a condition. The EAT also considered that if someone can reasonably be expected to modify his or her behaviour to prevent or reduce the effects of an impairment on normal day-to-day activities (by, say, using a coping or avoidance strategy) then that person’s condition might not meet the definition of disability.

The dietary adjustments Mr Stoute needed to make to control his condition were apparently minor. A condition requiring a more onerous diet is more likely to constitute a ‘measure taken to treat or correct’ an impairment and may well, in itself, have a substantial adverse effect on the individual’s ability to carry out the normal day-to-day activity of eating.

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