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Disability discrimination update- progressive conditions and new Government guidance on employing disabled people

28th February 2017

In this article we provide an update on recent developments in disability discrimination law. This covers clarification on the law about progressive conditions, and a brief summary of the Governments latest guidance on employing disabled people.

The disability discrimination legislation covers those people that suffer from a disability that has an immediate long term adverse effect on their ability to carry out normal activities, and those people that have a progressive condition which although at the time in question may not have a substantial adverse effect on them will do so in time- due to being a progressive condition. 

We have found that the law in relation to people that have progressive conditions can pose a number of problems for employers, as the fact that the individual worker is disabled may not be obvious at a particular time, and the period over which the condition may develop a substantial adverse impact may not be clear or obvious. This can lead the employer to be confused when presented with an individual that meets the legal definition to enjoy the protection under the disability discrimination legislation, when they did not regard them as disabled. It can also lead to confusion over planning for any necessary reasonable adjustments for an employee with a progressive condition where the course of the condition is not exactly predictable.

A recent case illustrates the problems that employers can have in considering progressive conditions, and the nature of advice they may receive from medical professionals. The case of Taylor v Ladbrookes Betting & Gaming Ltd involved an individual who, after being dismissed, claimed that he had in fact been disabled for a year before the dismissal due to suffering from Type 2 diabetes. A claim was submitted to the Employment Tribunal, which considered the question of whether the claimant was in fact disabled under the statutory definition. Two medical reports were referred to in the case. At the initial hearing the Employment Judge concluded that the individual was not disabled. However, on appeal the Employment Appeals Tribunal (EAT) concluded that the Employment Tribunal had applied the wrong test in reaching its decision on disability. It was noted that as Type 2 diabetes was a progressive condition, that the condition could amount to a disability even if it did not have the adverse effect at the time complained about, so long as over time it was likely that the condition would result in such an adverse condition. 

At the time in question the claimant's diabetes was under control by medication. There were also "lifestyle" changes that the claimant could make to control the condition. However, it was noted that the proper question was whether or not the condition was likely to result in an impairment. Then issue was not what might happen to a proportion of the population, but whether the medical evidence suggested that there was a chance of something happening. In the case the medical evidence was not clear on this point, and so the case was referred back to the Employment Tribunal for further consideration. The case referred back to previous guidance from the House of Lords in Boyle v SCA Packaging Ltd on progressive conditions, and Metroline Travel Ltd v Stoute. In the latter case  the EAT dealt with Type 2 diabetes. The latter case involved considering the question of how far avoiding sugary drinks can amount to a "measure" to treat or correct the condition. In our view the EAT reached an erroneous decision in deciding that this did not amount to a "measure" to treat the condition. This case highlights the importance of examining each case on its own merits and not simply disregarding the claim of disability discrimination because in a previous case the EAT decided that the Type 2 diabetes did not amount to a disability. This case also emphasised the need to to look at all the relevant guidance and see how they fit together, rather than take one part in isolation in reaching a decision on whether or not a person is disabled with a progressive condition.

The case also highlights the need of employers to ask very specific questions of any medical expert on the nature of any progressive condition, its and effects on the individual in the future, and in particular its effect on that person if they were not to receive any specific treatment or take measures to treat that condition.

The other development to report is new guidance from the Government on employing disabled people. The guidance gives details of appropriate sources of support and information for individuals and businesses.

It gives guidance to employers to increase their knowledge and understanding of disability, to enable them to recruit and support disabled people, and provides details of resources aimed at helping employers when attracting, recruiting and retaining disabled people.

If you need further advice on any aspect of this do not hesitate to contact Hallett Employment Law Services Ltd          

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