By Julie Dawson, Head of HR Consultancy, Alcumus
In the recent employment appeal tribunal case of Metroline Travel v Stoute, the Claimant asserted that he had been discriminated against as a result of a disability. He suffered with diabetes. The judge had to consider whether ‘type 2 diabetes’, which for Stout was controlled by diet, would automatically qualify as a disability from an employment law perspective.
It is interesting to hear that the Judge in this case determined it didn’t.
According to legislation, it is unlawful to discriminate against workers because of a physical or mental disability, or for the employer to fail to make reasonable adjustments to accommodate a worker with a disability. However the definition of a disability within the remit of employment law is different from what one might perceive. Under the Equality Act 2010 a person is classified as disabled if they have a “physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day-to-day activities”. It is interesting to note here that it is not just restricted to whether someone is able to fulfil their duties at work!
Substantial and long-term generally means has lasted, or is likely to last, longer than 12 months. Day-to-day activities include things such as using a telephone, ability to carry shopping, reading a book or using public transport.
The Claimant in this case had argued that he believed he was a disabled person because he suffered with ‘type 2 diabetes’ that required him to follow a diet that was intended to reduce his blood sugar levels.
Initially at the first hearing, the employment tribunal determined that his condition automatically made him a disabled person under the Equality Act, but Metroline Travel argued that the tribunal had failed to consider the specific circumstances of the case.
The case was therefore referred to the Employment Appeals Tribunal where it was found that this was not only an error of law, but, more controversially, they ruled that a diabetic diet does not qualify as ‘measures’ taken to treat or correct the condition. Therefore, if this case is to be taken as a precedent, type 2 diabetes which is controlled by diet does not fall within the definition of a disability in terms of employment legislation.
What is also reassuring in this case is that the Claimant was ordered to repay the Respondent’s fees in full. This now appears to be the way tribunals are going in ordering the losing party to pay the costs of the successful party which is a refreshing turnaround!
It is certainly useful for employers to have some clarification on this point as it is likely that with the increase in obesity in the UK, more people in the workplace may start to suffer from type 2 diabetes.
However just to complicate things, don’t forget that obesity could, in other situations , be considered to be a disability, and is likely to be considered as such if the employee suffers with other medical conditions which are aggravated or connected to obesity. However, not always! If you are in any doubt ring either your dedicated consultant or one of our highly experienced team for guidance.