The Employment Appeal Tribunal has held, in the case of Metroline Travel Ltd v Stoute (2015) that a bus driver who controlled his type 2 diabetes by abstaining from sugary drinks was not disabled under the Equality Act 2010.
The claimant controlled his type 2 diabetes by avoiding sugary drinks. He was dismissed by his employer for gross misconduct, and brought a claim for discrimination on the grounds of disability. The employer alleged that he did not meet the definition of disability in the Equality Act 2010, but an Employment Tribunal held that he was disabled. The employer therefore appealed to the Employment Appeal Tribunal on this point.
Under the Equality Act, a person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
If measures are being taken to treat or correct the impairment, then the impairment should be treated as having a substantial adverse effect on a person’s ability to carry out normal day-to-day activities if it would, but for the treatment or correction, be likely to have that effect.
Whilst the Equality Act guidance says that “…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”, the EAT held in this case that abstaining from sugary drinks was not sufficient to amount to a “particular diet”. Therefore there was no substantial effect on Mr Stoute’s day to day activities and he did not meet the definition.
The EAT’s decision does not mean that someone with type 2 diabetes can never be disabled under the Equality Act, but it may depend on an assessment of the particular diet that the individual follows to control their diabetes. The same principle will also apply to other medical conditions.
Often where employees have a recognised medical condition it is safest for employers to assume they may be covered by the Equality Act, but this case shows that there may be times when it is worth further consideration. It is always best to take advice to understand the risks and options.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).