Progressive Conditions and Disability

In a recent case, the Employment Appeal Tribunal (EAT) considered the question of whether type 2 diabetes could amount to a disability under the Equality Act 2010.

The Act states that a person has a disability if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Further guidance states that employees will be deemed to have a substantial impairment if they suffer from a progressive condition i.e. one which is likely to result in an impairment which has a substantial adverse effect in the future.

In this case, the employee, who suffered from type 2 diabetes, asserted that he had been disabled for nearly a year at the time he was dismissed. He brought claims in the Employment Tribunal for unfair dismissal and disability discrimination. At the Preliminary Hearing, the judge had sight of two medical reports and decided that the employee was not disabled. The judge took the view that there was only a small possibility that the condition would progress, especially if lifestyle measures were put in place. The employee appealed.

The EAT allowed the appeal, stating that, where employees have progressive conditions, they are deemed to be suffering from a disability before they have got to the stage where their condition is causing a substantial adverse effect. Further, the Judge had not properly considered the question of the progressive condition, and the medical evidence before the Tribunal concentrated on the condition’s effects in the past rather than looking at the future, long term prognosis. The Judge had concluded that the employee had not taken steps to control his condition (lifestyle matters); however the EAT confirmed that the question should have been whether the condition was likely to result in a substantial impairment.

This case demonstrates the importance of accurate medical evidence and putting the correct questions to medical professionals; however, it does not answer the question of how much weight should be given to an employee’s lifestyle when assessing long term effects of type 2 diabetes. We are not yet at the stage where it can be assumed that sufferers from type 2 diabetes are protected by the Equality Act and note will have to be taken on the outcome of this case when it is reheard in the Employment Tribunal.