Type 2 Diabetes
At Lincoln Occupational Health, we are often asked to give an opinion as to whether an employee’s condition is likely to be classed as a disability under the Equality Act 2010. The reason being that if so, the employer is expected to accommodate his illness within reason. For a condition to fall within the remit of the Equality Act, it must be substantial, long term and impact on daily living activities, with each condition being assessed in the hypothetical sense as if the individual were not receiving/had not received treatment. The ultimate decision is made by the Employment Judge rather than the medical profession. Notwithstanding this, Occupational Health (OH) professionals are asked to give an opinion although we are clear that this is purely our opinion rather than a legally binding statement.
One of the dilemmas OH professionals have recently faced is regarding type 2 diabetes and whether or not this condition would be seen as falling under the remit of the Equality Act. Diabetes is a lifelong condition that causes a person’s blood sugar level to become too high and type 2 diabetes occurs when the body doesn’t produce enough insulin to function properly (or the body’s cells don’t react to insulin).
Type 2 diabetes is far more common than type 1 diabetes (which occurs when the body doesn’t produce any insulin at all) and the rapid rise in the number of adults developing type 2 diabetes is due to increasing levels of obesity, a lack of exercise, increase in unhealthy diets and an ageing population.
So the question remains – is type 2 diabetes, classed as a disability?
Last year, an Employment Appeal Tribunal (EAT) case considered the question of whether type 2 diabetes, controlled by diet, automatically qualifies as a disability for the purposes of the Equality Act 2010. Whilst it was accepted by the EAT that someone suffering from type 2 diabetes who does not properly manage his blood sugar levels might be at risk of suffering a hypoglycaemic attack, the Judge (who himself suffers from this condition) found it “difficult…to see how a perfectly normal abstention from sugary drinks could be regarded as a medical treatment”. It went on to say that there was nothing to suggest that there has been any substantial interference with the person’s normal day-to-day activities, and did not consider abstaining from “Coca-Cola and fruit juice to be an impairment in ordinary day-to-day activities”. As such, the EAT found that the employee was not disabled under the Act.
However, a word of caution here… as it should not be assumed that all individuals with a diet-controlled condition are incapable of satisfying the definition of a disabled person under the Act.
For further advice regarding diabetes or other health related matters, please contact us
T 0844 481 0093 E firstname.lastname@example.org