Taylor v Ladbrokes Betting and Gaming Ltd

For the progressive-conditions deeming provision, the tribunal must assess whether the condition is likely to lead to a substantial adverse effect in the future. The inquiry is not answered by a numerical assessment of the proportion of people who may deteriorate. A medically recognised chance of deterioration may suffice.

The tribunal must base that prospective assessment on clear medical evidence addressing the actual progression of the condition and its future effect on normal day-to-day activities. It must not conflate evidence about a past period or current symptoms with evidence about future progression.

The claimant, who had type 2 diabetes, was dismissed and brought claims for unfair dismissal and disability discrimination. At a preliminary hearing, the Employment Tribunal held that he was not disabled within section 6 of the Equality Act 2010.

The Tribunal had decided the issue from written medical material. It concluded that the diabetes would have no adverse effect without medication and that there was only a small possibility of progression. The claimant appealed, principally challenging the Tribunal’s application of the progressive-conditions provisions in Schedule 1 and the evidential basis for its conclusions.

1. Appeal allowed and remitted. The Employment Judge’s conclusion that the claimant was not disabled could not stand. The medical material did not support the finding that type 2 diabetes progressed to type 1 diabetes, nor did it clearly support the finding that any future deterioration was only a small possibility.

2. Paragraph 8 of Schedule 1 to the Equality Act 2010 requires a prospective inquiry. Where a person has a progressive condition and a presently non-substantial effect, paragraph 8(2) deems the impairment substantial if the condition is likely to result in such an impairment. Applying Boyle v SCA Packaging Ltd [2009] ICR 1056, “likely” does not require a definite percentage or population proportion. The relevant question is whether there is a medical chance or risk that the condition will produce the relevant impairment.

3. The Employment Judge had treated evidence about symptoms during the material past period as answering the separate question of future progression. The evidence instead mixed present and future matters and did not provide a clear account of the natural progression of type 2 diabetes or its likely effect on normal day-to-day activities.

4. The Appeal Tribunal did not decide whether the reasonableness of lifestyle choices, or the guidance on coping and avoidance strategies, may be taken into account under paragraph 8(2). Nor did it finally determine the separate argument about medical treatment under paragraph 5. Those matters should be addressed, if necessary, on clearer medical evidence.

5. The case was remitted to Employment Judge Gaskell for reconsideration, with clearer questions to the medical expert or oral expert evidence and cross-examination.

• Employment Appeal Tribunal — allowed the claimant’s appeal and remitted the disability issue for reconsideration: [2016] UKEAT 0353_15_1612.
• Employment Tribunal — at a preliminary hearing, held that the claimant was not disabled within section 6 of the Equality Act 2010.