Is diet-controlled type 2 diabetes a disability under the Equality Act 2010?
With the chocolate excesses of Easter fading from our memories and the lure of summer BBQs just on the horizon, it seems that life often has a tendency to focus around socialising and meal times. I have recently got back from a week’s holiday in France where we seemed to move from one meal to another (each lasting considerably longer than a meal time at home) with very little else in between!
It is not therefore surprising that there have been several cases recently focusing on the health of employees and in particular their weight and whether certain weight-related conditions should be classed as a disability under the Equality Act 2010. We recently heard that obesity can, in some circumstances, lead to individuals being deemed to be disabled and the latest condition to cross the threshold of the Employment Appeal Tribunal is diet-controlled type 2 diabetes.
Mr Stoute was employed by Metroline Travel Limited and brought a claim for unfair dismissal and various discrimination claims. He claimed that he was disabled under the Equality Act 2010 as he had type 2 diabetes which he controlled by adopting a diet which avoided sugary fizzy drinks.
I am sure everyone is familiar with the definition of a disability under the Equality Act 2010, but as a refresher, 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.
There is guidance in the Equality Act 2010 which states that if someone has an impairment but they are receiving treatment for it, when trying to decide whether or not they are disabled the effect of the impairment should be considered based on what would happen if that treatment wasn’t taking place. A common example of this is someone who has very bad sight but wears glasses to correct it. The effect of the impairment on that person should be judged on what the person can do when they are not wearing their glasses, rather than when they are.
The decision of the Employment Tribunal – diet controlled type 2 diabetes is a disability
In Mr Stoute’s case, the Employment Tribunal initially held that the diet Mr Stoute was following was the equivalent of medical treatment and that if he were not following the diet he would meet the definition of a disabled person. He was therefore held to be disabled under the Equality Act 2010.
Metroline Travel Limited disagreed with this approach and appealed to the Employment Appeal Tribunal where, perhaps surprisingly, the decision was overturned.
The decision of the Employment Appeal Tribunal – diet controlled type 2 diabetes is not a disability
The Employment Appeal Tribunal took a different approach and felt that the references to treatment in the guidance to the Equality Act 2010 were not wide enough to cover diets avoiding sugary foods. They agreed that diets were a category of treatment which needed to be taken into account when considering the effects of an impairment but felt that abstaining from sugary drinks was not enough to constitute a “diet” and therefore should not be seen as treatment and should not be discounted when considering whether someone was disabled.
Despite the fact that they had earlier in their judgment acknowledged that a diabetic diet, by its very nature, involves trying to avoid foods with a significant sugar content – i.e. sugary fizzy drinks – the Employment Appeal Tribunal nevertheless held that diet controlled type 2 diabetes, in Mr Stoute’s case, was not a disability.
What does this mean for employers faced with employees on special diets?
The decision came as a bit of a surprise. It seems that the Employment Appeal Tribunal may have placed too much emphasis on the type of treatment that was used by Mr Stoute rather than focusing on what would happen to him if he was not following that particular diet.
There is specific guidance which comes with the Equality Act 2010 which states that in cases where employees have diabetes, which is controlled by either medication or diet, the question of whether or not they are disabled should be decided with reference to what would happen to the person if they did not use that medication or diet. This seems to be contrary to the decision that the Employment Appeal Tribunal reached, or at the very least seems to be considerably wider than the approach taken by the Employment Appeal Tribunal in reaching that decision.
It would not be surprising if subsequent cases on this point were to challenge the decision by the Employment Appeal Tribunal. For example, it begs the question whether a coeliac (who becomes seriously ill when eating gluten) or someone with a nut allergy would also face the same difficulty in establishing that they are disabled if the same principle was applied – i.e. that avoiding gluten or nuts was not enough to constitute a “diet”. It seems contrary to common sense for that approach to be taken, especially where the effects of eating that item can be severe and potentially life threatening in some cases.
The outcome of this case should therefore be taken with a healthy pinch of salt (no pun intended). It is also perhaps worth noting that the Employment Appeal Judge who heard the case disclosed that he also suffered from Type-2 diabetes.
The decision may be limited to the facts of Mr Stoute’s case enabling other people in similar but different situations to argue that their dietary restrictions are sufficiently serious to enable them to discount them when looking at the question of disability. It remains important for employers to consider carefully the effects of any treatment on an individual and what they would be able to do if they did not follow that treatment, whether it is a diet or any other form of treatment. It is of course possible that in some circumstances, even with discounting a special diet, an employee would not meet the other criteria necessary to qualify as a disabled person under the Equality Act 2010 and all of the criteria need to be considered equally before any action is taken.