Diet controlled Type 2 diabetes was not a disability

Posted on April 14, 2015

What does it mean to be disabled? Section 6(1) of Equality Act 2010 offers the following, somewhat dispassionate, legal test:

A person is deemed to have 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.

In a recent case the employment appeal tribunal (EAT) considered this test with regards an employee who suffered from Type 2 diabetes. In this case the employee was dismissed for gross misconduct and he brought a claim alleging, amongst other things, that he suffered disability discrimination.

When considering whether a person is disabled the guidance to the Equality Act 2010 states that ‘where an impairment is subject to a treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect’. So an employee may still be disabled if they are not suffering an adverse effect on their day to day activities because of the treatment they are undergoing.

In this case the employee claimed that he controlled his diabetes by abstaining from sugary drinks. This he considered a treatment and were he not to do it he would be deemed disabled under the test above.

The judge gave this argument short shrift. He said ‘I have not seen anything that suggests that there has been any substantial interference with normal day to day activities unless one considers abstention from Coca Cola and fruit juice to be impairment on ordinary day to day activities. I do not regard it as such’. As such, the employee in this case was not deemed to be disabled.

We would advise employers to treat cases of this kind with caution. In this case it was difficult for the judge to consider that abstaining from sugary drinks could be deemed to be a treatment or correction concealing a disability. Each case will however turn on its own facts and it may be possible that a person with Type 2 diabetes or even lactose intolerance or a nut allergy could in particular circumstances be deemed to be disabled. It essentially depends on applying the test outlined above to the circumstances of each case.