Metroline Travel Ltd v Stoute (Rev 1)

Type 2 diabetes does not, without more, amount to a disability under the Equality Act 2010. The statutory guidance requires account to be taken of reasonable coping or avoidance strategies. A condition controlled by the ordinary avoidance of sugary drinks does not thereby have a substantial adverse effect on ordinary day-to-day activities.

The effect of treatment or correction may be disregarded where the guidance requires it, but normal dietary restraint is not necessarily treatment, correction or a particular diet for that purpose. The assessment remains fact-sensitive and requires evidence of a substantial adverse effect.

The claimant, a bus driver, had Type 2 diabetes. At a preliminary hearing the Employment Tribunal at Watford held that he was disabled within the meaning of the Equality Act 2010. It relied on guidance concerning impairments subject to treatment or correction.

The employer appealed. The claimant was debarred from participating in the appeal. By the time of the appeal, a differently constituted Employment Tribunal had dismissed the claimant’s substantive claims, including claims for unfair dismissal, discrimination arising from disability and failure to make reasonable adjustments. The central issue was whether diabetes controlled principally by avoiding sugary drinks satisfied the statutory definition of disability.

1. Appeal allowed. The Employment Tribunal had erred in holding that the claimant was disabled. Type 2 diabetes is not, of itself, a disability under the Equality Act 2010.

2. The guidance at paragraph B7 required the tribunal to consider the extent to which a person could reasonably be expected to modify behaviour through a coping or avoidance strategy. Such a strategy can remove a substantial adverse effect on normal day-to-day activities.

3. The claimant’s avoidance of sugary drinks was ordinary dietary restraint. It was not a substantial adverse effect on day-to-day activities. Nor was it medical treatment, correction, or a particular diet whose effect had to be ignored under paragraph B12. There was no evidence of a substantial interference with ordinary day-to-day activities.

4. The Employment Tribunal’s approach would wrongly mean that all persons with diet-controlled Type 2 diabetes were disabled. The appeal, although largely academic after dismissal of the substantive claims, was properly determined because the erroneous finding could affect the employer’s workforce.

5. Under the Employment Appeal Tribunal Rules, the employer was awarded reimbursement of its appeal fees, limited to £1,600. The order concerned repayment of fees necessary to bring an appeal and was not an ordinary costs-shifting order.

• Employment Appeal Tribunal: Allowed the employer’s appeal and set aside the preliminary finding that the claimant was disabled.
• Employment Tribunal, Watford: At a preliminary hearing on 24 March 2014, held that the claimant was disabled within the meaning of the Equality Act 2010.
• Employment Tribunal, Watford: On 30 May 2014, a differently constituted tribunal dismissed the substantive claims for unfair dismissal, discrimination arising from disability and failure to make reasonable adjustments.