Type 2 Diabetes, controlled by diet, is not a disability for the purposes of the Equality Act 2010. You may be wondering why (or indeed, if) this is a newsworthy point. That certainly seems to be the view of Judge Serota QC in his entertaining judgment in the case of Metroline Travel Limited v Stoute.
At a case management Preliminary Hearing in the original claim, the Claimant, Mr Stoute, argued that a person suffering from Type 2 diabetes might be at risk of suffering a hypoglycaemic attack if blood sugar levels were not properly managed. Consequently, the fact of managing the blood sugar levels by way of a diabetic diet (one avoiding sugary foods and drinks) amounted to treatment of that medical condition.
The Tribunal judge was persuaded by these arguments. He concluded that, following the statutory guidance on the definition of a disability, a person with Type 2 diabetes would be disabled, as without treatment (in the form of the controlled diet), the illness would be likely to have a substantial adverse effect on the person’s day to day activities.
Judge Serota in the Employment Appeal Tribunal was clearly unimpressed by these arguments and overturned the Tribunal’s judgment.
Judge Serota accepted that a diabetic diet involves trying to avoid foods with a significant sugar content including sweets, chocolates and fruit juices. However, he took the view that it is difficult to see how a perfectly normal abstention from sugary drinks could be regarded as medical treatment. He also went on to say that he had not seen any suggestion of a 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” which in his view, it was not.
Some people may conclude from the judgment that perhaps Judge Serota‘s opinion was affected by the fact that he, himself, suffers from Type 2 diabetes, resulting in a need to watch what he eats and drinks. His experience in this regard is that he has never suffered any effect on his normal day to day activities, whether substantial or otherwise, save that he has to watch his diet. Other people may infer from the judgment that Judge Serota was rather disapproving generally of the Claimant in this case. This may be evidenced by the reference to the Claimant’s “chequered employment history” which included a prior occasion when he diverted his bus so he could go and buy some chicken kebabs.
Regardless of this, it is clear that this is a sensible decision. To leave in place a general Tribunal finding on a point of law that a condition controlled by diet would, by itself, amount to a disability, would be to open the floodgates to potential claimants suffering from a number of diet controlled conditions. Whilst no one would dispute that afflictions such as nut allergies, food intolerances and IBS can be serious and may, in some cases, amount to a disability, each case needs to be judged on its facts and not be protected automatically in every case.
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