This is a question an employment tribunal judge must reconsider after the Employment Appeal Tribunal (EAT) upheld an appeal against a ruling that an employee with type 2 diabetes was not disabled under the Equality Act 2010.
The claimant, Mr Taylor, lodged claims for unfair dismissal and disability discrimination after being dismissed by Ladbrokes Betting and Gaming Ltd.
To qualify as a disability under the Equality Act 2010, the condition must have a substantial long-term adverse effect on the employee’s ability to carry out normal day-to-day activities. When considering Mr Taylor’s condition, the employment tribunal judge was told by a specialist that Mr Taylor’s type 2 diabetes could easily be controlled with modifications to his lifestyle, diet and exercise regime, and in the consultant’s view it would have no adverse effect on his ability to carry out normal day to day activities even without taking his medication.
However, paragraph 8 of the Equality Act 2010 Guidance sets out that a person who suffers from a progressive condition that impairs their day to day activities, and which is likely to lead to a substantial adverse effect through deterioration, is deemed to be suffering from a disability before they reach that stage. Regarding the possibility that Mr Taylor’s condition was progressive, the employment tribunal judge felt that there was only a small possibility that this was the case.
The EAT held that the medical evidence before the judge was insufficient for him to make an informed decision. The consultant’s evidence, though accurate, had not explored the possibility of Mr Taylor having a substantial impairment in future. The EAT judge noted that even if the possibility of deterioration was small, it should be considered ‘likely’. He remitted the case to the same tribunal judge for reconsideration.
Gaby Hardwicke Employment Law Services Partner Paul Maynard commented: “It should be remembered that to be considered a disability a condition is viewed based on its impact on day to day activities ignoring any treatment that the patient may be undergoing such as insulin injections. There are 2.7 million sufferers of type 2 diabetes in the UK with an estimated 750,000 yet to be diagnosed. It is a reminder of just how wide the definition of disability potentially is – a fact that is frequently overlooked by employers”
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For specialist legal advice on employment tribunal claims, disciplinary issues, disability discrimination or any other employment law matter please contact Employment Law Services Partner Paul Maynard on 01323 435 900 or email Paul Maynard.