Over the years the courts have made it pretty clear that it doesn’t matter how your disability has come about, it is whether or not you are suffering from a disability that is relevant. So it doesn’t matter whether you have indulged in a high risk sport which has left you with injuries and long-term mobility problems, or whether you have over-indulged, be it alcohol, cigarettes or any other substance including food, it is the effect of that over-indulgence that is looked at, not the cause. Thus a chain-smoker who has damaged their lungs and ends up with emphysema and breathing difficulties can be protected by the legislation just as much as somebody who was born with a medical condition.
This came out most recently in the Danish childminder case Kaltoft which you will recall related to his obesity. The judges were clear in that case that the cause of somebody’s disability is only relevant if the employer is challenging whether or not they are in fact disabled and there is some question mark over whether or not they are. In that case it may be relevant to look at how the medical condition has come about.
A7 of the Equality Act 2010 guidance issued by the Office for Disability Issues makes it clear ‘it is not necessary to consider how an impairment is caused, even if the cause is a consequence of the condition which is excluded’ (for example liver disease as a result of alcohol dependency would count as an impairment although an addiction to alcohol itself is expressly excluded from the scope of the Act). What is focussed on is the effect of the impairment.
However, once we are across the line in terms of establishing the person’s disability, to what extent is their behaviour relevant? I am sure we have all come across scenarios where we have felt that a particular individual doesn’t help themselves, whether that is a reluctance to take medication that has been prescribed for them or a failure to eat healthily and do exercise that has been suggested or not getting the sleep that they need.
B7 of the guidance makes it clear that ‘account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day to day activities’. In some instances a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day to day activities.
Thus there is an obligation on the employee to take reasonable steps to look after themselves with the ironic consequence that those people who are very good at managing their condition may do so well that they bring themselves outside of protection of the legislation altogether.
This does mean that it is acceptable for an employer to have a conversation from time to time with their disabled employee about what they are doing to help themselves or to challenge them perhaps where things have changed and there has perhaps been a worsening over time. This might be as part of a referral to Occupational Heath. It does also mean that as an employer you are entitled to expect the employee to take some responsibility and put in place some behavioural changes, for example as part of a return to work plan.
However, the guidance also makes it clear that where somebody has a coping or avoidance strategy which breaks down, the employer must take into account whether it is causing that to happen. For example, somebody might have a coping mechanism for dealing with their dyslexia but if they are placed under too heavy a workload or stress in the workplace this could lead to them having problems. The employer must explore, as part of their conversation with the employee, whether they can be doing anything to alleviate the situation. However, it has always been the case that the judges are asked to look at the person outside of the medical treatment they are receiving so in the most obvious example, somebody with a hearing aid is considered without their hearing aid in which case clearly they would be disabled. Someone with diabetes or epilepsy who takes medication or controls their condition through diet will be considered without that medication or dietary changes. The exception to this is glasses – so many people wear glasses that the wearing of glasses, save in the most serious of cases where somebody has a specific eye condition, is not a disability.
What this means is that, from a disabled person’s perspective, it makes more sense for them to have any steps that they are taking to control their medical condition to be sanctioned by their doctors – this actually increases their likelihood of being able to show that they have a disability compared to the person who is just managing their condition alone.
These issues arose recently in the case of Metroline Travel Limited v Stoute, a case which went to the Employment Appeal Tribunal in relation to a bus driver who suffered by Type 2 diabetes which he controlled largely by avoiding sugary drinks. Interestingly, the judge, His Honour Judge Serota QC himself suffers from Type 2 diabetes and when reading the Judgment you very much get the impression that he bore the Claimant little sympathy in his bid to claim he was disabled, having been dismissed for gross misconduct. The judge notes that the employee had a ‘checkered employment history including,I note, diverting his bus so he could go and buy some chicken kebabs’. He went on to say ‘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’. Whilst this case does not mean that no-one with Type 2 diabetes could ever claim to be disabled, it does highlight that in order to get across the threshold you really do have to show some negative impact on your daily life and this particular Claimant had failed to do that.