Case update (3): Disability discrimination – Type 2 diabetes

Summary:  Can type 2 diabetes be a disability?

Yes, says the EAT in Taylor v Ladbrokes Betting & Gaming Ltd available here.

Background:  Under the Equality Act 2010, 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 taken by the person to correct or improve the impairment, they will still be considered to have a disability if the impairment is considered to have a substantial adverse effect even without the measures.

Facts:   The employee, Mr Taylor, who suffers from type 2 diabetes, was dismissed by his employer, Ladbrokes Betting and Gaming Ltd, and brought claims of unfair dismissal and disability discrimination.  The employee claimed that he had been disabled for almost a year before his dismissal, due to type 2 diabetes.  At a preliminary hearing an employment judge found on the basis of two medical reports that his type 2 diabetes did not amount to a physical impairment and therefore the employee was not disabled.

The employee appealed to the EAT. The EAT held that the Tribunal had misconstrued the proper test.  The question the Tribunal should have asked was whether the condition was likely to result in an impairment. Type 2 diabetes, as a progressive condition, would amount to a disability even if it did not have a substantial adverse effect at that time, as long as it was likely that it would result in such a condition.

As the medical evidence was not clear as to whether the employee’s diabetes was  progressive, the EAT remitted the case back to the Tribunal to reconsider the medical evidence in light of the condition’s progressive nature and the extent of the possibility of the condition significantly worsening in the future.

Implications:  This case suggests type 2 diabetes can be a disability depending on the medical prognosis of the likely impact of the condition in individual circumstances.  Given the current extent of type 2 diabetes in the UK and that this is only set to worsen; this is a warning to employers to be mindful of disability discrimination law when dealing with any employee who suffers from type 2 diabetes and to get medical evidence before making decisions.