Is Diabetes a Disability?

The Equality Act 2010 does not provide a list of conditions which may or may not amount to a disability.  Instead, we must work with the definition in the legislation which defines a person having a disability if they have a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day to day activities.

A recent case before the Employment Appeals Tribunal (EAT) considered whether an individual suffering from Type II Diabetes was disabled.  Particular reference was made to guidance published in conjunction with the Equality Act on matters to be taken into account in determining questions relating to the definition of disability.  This guidance suggests that, if a person can reasonably be expected to modify their behaviour to reduce the effects of an impairment on their day to day activities, they might not be considered to be disabled.  A coping or avoidance strategy might alter the effects of an impairment to the extent that they are no longer substantial.  In such circumstances, an individual will no longer be a disabled person for the purposes of the Equality Act.

In the case before the EAT a bus driver brought various claims, one of which was discrimination arising from disability and one of a failure to make reasonable adjustments.  He argued that his Type II Diabetes amounted to a disability.  The employee in particular relied on a separate paragraph of the guidance which states that “where an impairment is subject to 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”.

In summary, the employee was arguing that even though he took steps to manage his diabetes, the effect of the diabetes if he did not manage the condition would be substantial and would therefore amount to a disability.  On the contrary, the employer was arguing that the employee had modified his behaviour to the extent that the effects were no longer substantial and therefore the condition did not amount to a disability and this guidance appeared to be contradictory.

The EAT noted that the particular management technique of the employee was to abstain from sugary foods such as fizzy drinks by following a diabetic diet.  The EAT stated that this change in lifestyle did not amount to “treatment” so the employee’s argument that his impairment was subject to treatment was rejected.  The EAT therefore confirmed that Type II Diabetes was not a disability.

The above case is only helpful to a limited extent in outlining the issues faced by employers when determining whether an employee has a disability, particularly where he has taken steps to manage and mitigate the effects of such a condition.  Unfortunately, neither party nor the EAT decided to consider a separate part of the guidance accompanying the Equality Act which states: “The case of someone with diabetes which is being controlled by medication or diet should be decided by reference to what the effects of the condition would be if he or she were not taking that medication or following the required diet.”

Had the above extract been considered, the employee may have been able to show that there were substantial, adverse effects on his day to day activities by virtue of his condition.

Where a company is required to assess an individual’s condition therefore, regard should be had to the Equality Act and the guidance accompanying the Act.  It may also be appropriate to consult the employee’s GP or an occupational health expert where there is uncertainty or a lack of knowledge about a particular condition.