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Disability or not? Stress and type two diabetes under the spotlight

  • United Kingdom
  • Employment law

25-05-2017

The Employment Appeal Tribunal (EAT) has recently considered the legal definition of disability in the context of two issues of ever-increasing significance in the workplace: type two diabetes and stress. In the first case the EAT’s decision has the potential to re-open a door to claims that was thought to have been slammed shut two years ago in a different case on type 2 diabetes. The second case, however, is more likely to discourage claims of disability discrimination from those who have experienced workplace stress – or at least bolster employers defending such claims where medical evidence – beyond a sick note diagnosing ‘stress’ - is lacking.

Type 2 diabetes

Two years ago we wrote about the case of Metroline Travel Ltd v Stoute, an EAT decision that suggested it would be difficult for an individual with type 2 diabetes to show that the condition, in itself, constitutes a disability if he or she could eliminate its adverse effects by following a healthy, balanced diet. In the recent case of Taylor v Ladbrokes Betting & Gaming Ltd, however, the EAT looked at type 2 diabetes from a different angle, and concluded that someone with the condition might well qualify as a disabled person by virtue of the Equality Act’s provisions on progressive conditions.

Under the Equality Act 2010, someone with a progressive condition is deemed to be a disabled person even before their condition has any substantial adverse effects on their ability to carry out day to day activities, provided the condition has some effect on their day to day activities and that those effects are likely to be long term and increase in severity at some point in the future to the point that they are no longer minor or trivial. The EAT in this case made the point that the issue is whether the condition could well deteriorate to such an extent, even if the likelihood of it doing so may be small.

There was some medical evidence in the case that, on one reading, might have been suggesting that the longer-term effect of diabetes is to develop various conditions after, usually, 10-20 years or so. The EAT felt, however, that the medical evidence did not clearly address the issues and decided that the case should be reconsidered by the employment tribunal once a clearer medical opinion has been obtained.

This case indicates that that those with type 2 diabetes may not find it as difficult to qualify for rights and protections as disabled persons than the earlier case of Stoute suggested was the case. Regrettably, because the medical evidence in the case was not clear enough as to the long-term effects of diabetes on the general population, the EAT had to stop short of making any general pronouncements on whether type 2 diabetes does, in general, qualify as a disability even when well controlled by diet. Given the often reported rise in the prevalence of the condition, some further guidance from the appeal courts is sorely needed.

Workplace stress

In the case of Herry v Dudley Metropolitan Council the EAT gave some useful guidance directed at diagnoses of ‘stress’, particularly in cases of long-term absence. The EAT noted that ‘there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day-to-day activities.’ The EAT observed that it does not necessarily follow that there is a mental impairment in such a case, saying ‘unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise are not of themselves mental impairments: they may simply reflect a person’s character or personality.’

Many employers will recognise the scenario outlined by the EAT and the guidance is a welcome reminder that the fact that a GP’s note refers to ‘stress’ and that the individual’s absence has continued for a long time, do not, on their own, automatically mean the individual has a disability, with all that potentially entails in respect of workplace adjustments. Nevertheless, the ruling should not be taken as suggesting that stress can never give rise to a mental impairment and in assessing whether an individual does have a medical condition the primary focus is still on the employee's ability to carry out day-to-day activities, rather than simply any label used to describe his or her state of mind. Furthermore, employers should watch this space for post-election changes to the definition of disability so far as mental health is concerned.