You may be aware that under the Equality Act certain conditions that might be described as progressive are automatically deemed a disability under the legislation including Cancer, HIV and Multiple Sclerosis. Sight impairments that are certified by a Consultant Ophthalmologist will also be captured. But how does the law look at other progressive conditions? This has come to the fore recently with a case involving somebody with Type II Diabetes, which might not have a huge effect on somebody’s ability to carry out normal day-to-day activities, depending on how it’s managed.
The case of Taylor v Ladbrokes Betting & Gaming Ltd involved being dismissed by reason of incapacity or misconduct and alleged unfair dismissal and disability discrimination. The legislation directs that where somebody has a progressive condition, and as a result of that condition has an impairment, which has an effect on their ability to carry out normal day-to-day activities but the effect is not a substantial adverse effect then the individual is still taken to have a disability which has a substantial effect if the condition is likely to result in them having such an impairment in the future. The law obviously has to balance protecting those who might be discriminated against where an employer might have a stereotypical reaction about what a particular medical condition might mean for somebody and not wanting to open the floodgates. A significant proportion of the population might suffer from a condition like diabetes and it can be controlled by relatively common place and simple measures.
The legislation refers to medical treatment and states that where somebody is receiving treatment the Judges must look at how the person would be and the effect on their ability to carry out normal day-to-day activities without the correction of the medical treatment. A simple example: what would the position be for somebody with a prosthetic limb if they did not have that device? The guidance to Judges also encourages them to take account of an individual’s behaviour. For example, somebody might have a coping strategy, which prevents or reduces the effects of an impairment on normal day-to-day activities so successfully that they are no longer substantially disadvantaged. In other cases you might have somebody such as a Dyslexic who normally copes very well but when placed in a stressful situation their strategies are not effective and then start to place them at a disadvantage. This all needs to be taken into account.
In this case, the medical opinion before the Tribunal suggested that without medication the employees condition had no adverse impact on his ability to carry out normal day-to-day activities: he was able to control his condition by means of lifestyle diet and exercise alone. The Medic felt that the Employee hadn’t taken basic steps in this regard which might have reasonably been expected of him, and went on to comment that he felt there was only a small possibility of the condition progressing to Type I Diabetes, if the individual followed the advice that had been given to him. Having been unsuccessful the employee appealed around the conclusion that there was only a small possibility of his condition progressing, arguing there was no evidence to support this conclusion. At the Employment Appeal Tribunal the Judge noted the legislator position directing them to view somebody with a progressive condition (where it isn’t currently placing a substantial effect on their ability to carry out routine day-to-day activities) in the same position as if it were having that substantial effect, if it is likely that later it would have that effect due to the deterioration and progressive nature of the condition. Putting it simply, if in this time it’s likely to have a substantial effect on my ability to carry out normal day-to-day activities then I should be protected now. The Medical Report noted that the long-term effects of somebody who poorly manages their Diabetes is to develop various complications which the Medic referred to happening perhaps in 10 to 20 years after having first developed the condition. The Employee used this to argue that of course it meant he did have a progressive disease using some evidence of changes that were occurring at the back of his eyes. The Employment Appeal Tribunal criticised the Judge for thinking about the progression from Type II Diabetes to Type I Diabetes, what they should have been thinking about was the likelihood of a progression to the more significant set of symptoms of Type II Diabetes: as that could well happen it ought to have treated it as a progressive condition protected by the legislation. They were prepared to accept that even if there is a small possibility of deterioration in the population in general that was enough to make it likely that it might result in a particular individual having such an impairment. The matter was therefore sent back to the original Tribunal for reconsideration.
What this illustrates is the importance of not only understanding the medical position as it might be when you’re perhaps trying to decide whether to dismiss somebody but also understanding what the likely position is going forward. If you read the detail of this case the employer was criticised with the benefit of hindsight about the questions that were asked of the medics so it shows that it’s not enough to just wheel out your standard letter to a doctor and in a given case when asking a question about somebody’s health the questions you are using should be tailored to the circumstances, which is something that we can help you with. If you would like us to review your letter to Occupational Health that you tend to use please do not hesitate to let us know.