Some 3.1 million people in the UK currently have Type 2 diabetes and the number is expected to increase to 4 million by 2025. Of course it is unlikely that there has been an exponential increase in the number of diabetics in the last few years and it is far more likely that there is an increased willingness to make a diagnosis of Type 2 diabetes. Type 2 diabetes was not identified until the 1930s and not treated until the 1950s. Currently it is estimated to affect 6% of the world’s population.
As such it has the capacity to be a disability suffered by a significant proportion of the workforce. But is it?
In Metroline Travel Limited -v- Stoute His Honour Judge Daniel Serota QC, sitting in the Employment Appeal Tribunal, decided to address the issue. At a preliminary hearing in the Watford Employment Tribunal Judge Smail decided that Mr Stoute, who suffers from Type 2 diabetes, was disabled within the meaning of the Equality Act 2010. Mr Stoute was employed as a bus driver from 1992 to March 2013 when he was dismissed for gross misconduct. His substantive claim was rejected but, at a hearing in September 2014, Mr Recorder Luba QC suggested that there was a real chance of showing that anyone with Type 2 diabetes “had in consequence of that fact alone met the statutory definition of disability in the Equality Act 2010”. It was this aspect that Judge Serota went on to consider.
The Judge noted that there were times when Mr Stoute was not taking medication to reduce blood sugar levels, relying instead on a diabetic diet by avoiding, for example, sugary drinks. The Judge noted that a diabetic diet was also likely to include avoiding foods with a significant sugar content such as sweets, chocolates a fruit juices.
Judge Serota made clear his scepticism about whether managing one’s diet could be regarded as a course of medical treatment:
It is difficult, in my opinion, to see how a perfectly normal abstention from sugary drinks could be regarded as a medical treatment, and I have not seen anything that suggests there has been any substantial interference with normal day-to-day activities unless one considers abstention from Coca-Cola and fruit juice to be an impairment in ordinary day-to-day activities. I do not regard it as such.
Interestingly Judge Serota disclosed that he suffers from Type 2 diabetes. He said that he controlled it by diet as well as taking gliptins. He noted that the condition had not only had no substantial adverse effect on him but it had also, other than needing to watch what he eats and drinks, had no effect at all. Judge Serota pointed out that the finding made by Judge Smail was perverse since, by analogy, those with conditions such as nut allergies or intolerance to lactose could be regarded as disables.
Somewhat controversially, not given that Mr Stoute was debarred from taking part in the appeal, Judge Serota also ordered that he should pay Metroline’s fees of £1600 to bring the appeal. His reasoning was that the appeal was necessary as the only way in which the employer could seek to set aside a finding that Type 2 diabetes necessarily constitutes a disability within the meaning set out Equality Act. The order was made notwithstanding that Judge Serota acknowledged that he knew nothing of Mr Stoute’s means. Very much a sign of the times!