Employment Tribunals, Diabetes 2 & Whistle-blowing

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A lot of whistle blowing is done at Employment Tribunals and workers enjoy protection if they bring what is known as a 'protected disclosure' into being. That is a topic for later. 

The work of Employment Tribunals however is certainly very varied. A recent Employment Tribunal case was asked to consider whether Diabetes 2 is a disability?

The Employment Appeal Tribunal has had to consider whether a person suffering from Type 2 diabetes was disabled on the basis that he suffered from a progressive condition.

The Case:

The Employment Appeal Tribunal has overturned an employment tribunal’s decision that a man suffering from Type 2 diabetes was not disabled. The judge had not properly considered whether his Type 2 diabetes was a progressive condition. He should have considered whether the condition was likely to result in a substantial adverse effect on normal day to day activities and the medical evidence had been inadequate in this regard as it had not considered the future prognosis. It was also unclear whether the claimant’s conduct in relation to lifestyle, diet and exercise was a relevant factor when dealing with progressive conditions. It ordered the employment tribunal to reconsider whether he was suffering from a progressive condition. 

Background

A person is disabled 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 person may also be disabled if they suffer from a progressive condition resulting in an impairment which has an effect on their day to day activities, and which is likely to result in an impairment having a substantial adverse effect in the future. 

Facts

In Taylor v Ladbrokes Betting and Gaming, Mr Taylor suffered from Type 2 diabetes. He was dismissed and claimed disability discrimination. A preliminary hearing was held to determine whether he was disabled. Based on written medical evidence, the employment judge ruled that he was not disabled. His condition was controlled by medication, but even without medication it would have no adverse effect on his ability to carry out day to day activities. The medical evidence also indicated that he could easily control his condition by means of lifestyle, diet and exercise. 

The judge also (wrongly) considered that the purpose of the medication was to prevent Type 2 diabetes progressing into the serious and debilitating condition Type 1 diabetes. He considered that there was a small possibility of the condition progressing, especially if Mr Taylor followed advice about lifestyle, diet and exercise. He was not therefore suffering from a progressive condition and was not disabled.

Mr Taylor appealed to the Employment Appeal Tribunal (EAT).

Decision 

The EAT upheld his appeal and sent the case back to the employment tribunal to consider again whether Mr Taylor suffered from a progressive condition. 

Although the judge had been wrong in finding that Type 2 diabetes can progress to Type 1 diabetes, the evidence indicated that Type 2 diabetes can lead to other conditions, especially when poorly controlled. The judge had concluded that there was only a small possibility of the condition progressing, especially if Mr Taylor followed advice about lifestyle, diet and exercise. However, it was not clear whether it was correct to take Mr Taylor’s conduct into account when considering whether he was suffering from a progressive condition. The correct question to ask is whether the condition is likely to result in a substantial impairment. This means whether a doctor would consider there is a chance of it happening: a small possibility is sufficient. 

However, as the medical evidence had concentrated on the effect of Mr Taylor’s condition at the relevant time, rather than looking to the future prognosis, the case was remitted to the employment tribunal to reconsider whether he suffered from a progressive condition.

Implications

A person suffering from Type 2 diabetes may be disabled on the basis that they suffer from a progressive condition. Whether they are disabled will depend on the medical prognosis of the likely impact of the condition in their case. Whilst a person suffering from Type 2 diabetes will not necessarily succeed in demonstrating that they are disabled, the decision in this case has opened up that possibility and will therefore be of concern for employers. The EAT’s refusal to decide in principle whether the reasonableness of a person’ conduct (in this case regarding lifestyle, diet and exercise) is relevant when dealing with progressive conditions is also unhelpful.

Information courtesy: DoyleClayton solicitors