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Disability discrimination cases, on Type 2 Diabetes, and knowledge of disability

31st March 2015
A number of interesting cases have been decided recently by the appeal courts regarding disability discrimination.

The first we report on looks at the question of whether a condition amounts to a disability or not. the law states that to be a disability a particular condition does not need to be have a specific medical diagnosis or label. Instead the law focuses on the nature and effect of the particular condition, and its effect on the person's ability to carry out normal day to day activities. However, the law goes on the state that some conditions will not amount to a disability. Perhaps the most common example would be minor sight problems (as opposed to blindness or substantially impaired eyesight) where those problems are effectively corrected by the wearing of spectacles. A recent case has examined the question of whether or not Type 2 diabetes amounts to a disability where it is controlled by diet. In this case, Metroline Travel v Stoute, Mr Stoute had been dismissed for gross misconduct. He brought a claim alleging unfair dismissal and disability discrimination and that the employer had failed to make reasonable adjustments in light of his disability. In hearing the case the Employment Tribunal accepted without detailed analysis that the Type 2 Diabetes made him a disabled person under the Equality Act 2010. There was an appeal on the subject of whether or not the condition in this case amounted to a disability. The Employment Appeals Tribunal (EAT) noted that the evidence of Mr Stoute was that his condition was controlled by diet, avoiding sugary drinks (admittedly at this point we should say that it is our view that there seems to have been little evidence given about the condition and the impact of it on Mr Stoute). In the circumstances the EAT concluded that the avoidance of sugary drinks was not a "substantial adverse" impact on Mr Stoute's ability to carry out normal activities, and therefore did not amount to a treatment or correction. So it concluded that the measures required to Mr Stoute's diet did not qualify as measures to treat it or correct it, and so it concluded that his condition did not amount to a disability. The ruling indicates that adopting a diabetic diet may be regarded as something to be ignored when considering the adverse effects of a disability. We give warning at this point that we do not think that this case leads to the conclusions that Type 2 diabetes is never a disability under the Equality Act. Clearly there are different levels of effect and severity of the condition. The case does however indicate that diagnosis of Type 2 diabetes will not mean that the individual is automatically to be treated as disabled under the Equality Act. Each individual case should be carefully considered, and employers should not assume that the individual that has Type 2 diabetes is never disabled.

The second case illustrates the fact that the liability only arises if the employer has actual or constructive knowledge of an employee's disability. 

In the case of Donelien v Liberata UK Ltd, the individual, Ms Donelien had been absent from work, for various reasons, for the period of 128 days. The employer had sent her to their Occupational Health service, asking if there was an underlying condition. The conclusion at that point was that she did not have a disability. However, by the time that Ms Donelien was dismissed she did have a disability. The employer had not asked further questions later, but nonetheless the EAT accepted that the Employment Tribunal should not dissect the employer's investigation to see if it could have done more at a later date to ascertain if the employee was disabled or not. The EAT concluded that the employer had made sufficient investigation, and that was all that was required of it. On that basis the employer could not be regarded as having constructive knowledge of the employee's disability- as the investigation it had carried out indicated the contrary and was a reasonable investigation.

The second case highlights a number of issues; firstly that the severity of conditions may change, such that while at first it is not a disability it later becomes one. Secondly the case illustrates that employers are not expected to carry out exhaustive investigations, just "reasonable" ones. Thirdly it illustrates the practical point that employers will need to carry out new reports if the "old" one is particularly old, and that they cannot rely forever on a report (but can do so for a reasonable period).

If you need advice on any issues covered by this article please do not hesitate to contact us at Hallett Employment Law Services Ltd.
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