Diabetes at work: How to avoid disability discrimination

As it grows as a public health threat, diabetes at work will present a challenge as more employees may be viewed as disabled.

Diabetes will increasingly present a challenge at work as the number of people with the condition rises and more employees could be viewed as disabled. Akshay Choudhry, an associate at Burges Salmon, considers the implications.

According to NHS Choices, 3.9 million people in the UK now suffer from diabetes. By 2025, this figure is expected to rise to five million; equating to more than 1 in 13 people. As it grows as a public health threat, diabetes at work will increasingly present a challenge as more employees could be viewed as disabled

As many will know, there are two main types of diabetes: type 1 and type 2. It is the latter type that is on the rise due to its link with lifestyle factors such as obesity and unhealthy diets. While the European Court of Justice (ECJ) decided last year, in Karsten Kaltoft v Kommunernes Landsforening, that obesity itself is not a protected characteristic for the purposes of discrimination, its consequential effects – such as type 2 diabetes – can amount to a disability.

While a diagnosis of diabetes does not automatically mean that an individual is disabled, those with the condition may qualify as disabled under the Equality Act if  they meet the statutory test. In essence, it is the degree to which the diabetes impacts on the employee’s ability to carry out their day-to-day activities that determines whether or not they are afforded protection.

Applying the disability test to diabetes

The Act, which is supported by guidance on what can be taken into account in determining disability (the guidance), suggests that when determining whether or not the test of disability is met:

  • if a condition is treated or corrected, the effect of that treatment or correction should be ignored when assessing the condition and its impact on the employee; or
  • if a condition is managed using a coping or avoidance strategy, the effect of that coping or avoidance strategy should be taken into account when assessing the condition and its impact on the employee.

This guidance can be pivotal in determining whether or not a diabetic employee meets the test of disability – it is not, however, particularly straightforward to apply.

It uses the example of someone with diabetes that is controlled by medication or diet; that person should be assessed by reference to the effect their diabetes would have if they were not taking that medication or following the required diet.

For example, a diabetic that is taking regular insulin injections may have no obvious signs of impairment; however, if that person stops taking their injections, their diabetes may start to have a substantial impact on their ability to carry out day-to-day activities. For this reason, while the disability test should still be considered in each individual case, it will often be straightforward for an insulin-dependent – or type 1 – diabetic to meet the test for disability.

Similarly, a type 2 diabetic whose condition has progressed to the extent that they are reliant on medication or insulin injections is likely to be disabled under the Act.

However, the question of disability is more difficult to determine when the individual is able to manage their condition through good diet, for example.

While the guidance suggests that the effects of diet should be discounted when determining whether or not a diabetic is disabled, this has been cast into doubt by the recent Employment Appeal Tribunal (EAT) decision in Metroline Travel Ltd v Stoute (Case UKEAT/ 0302/14).

Here, the EAT found that Mr Stoute’s avoidance of sugary drinks was a coping strategy (as opposed to a treatment), which meant that it should not be ignored in assessing whether or not his condition amounted to  a disability. This led to a finding that he was not disabled for the purposes of the Act.

The EAT appears to have drawn a distinction between relatively minor or small behavioural adjustments to diet, which it viewed as a coping or avoidance strategy, as opposed to more significant or wider changes to diet, which would be a treatment or correction. But the EAT’s decision has been criticised, not least because it creates greater uncertainty for employers when managing diabetic employees.

Implications for employers

If an employee does satisfy the legal test for disability, and they are put at a disadvantage because of it, their employer must make reasonable adjustments to alleviate the impact of the disability. For a diabetic employee, this might mean allowing breaks for insulin injections or glucose intake, or allowing time off work to attend medical appointments.

Adjustments may also be required to disciplinary triggers or bonus entitlements which are linked to the number of sick days taken, or to productivity levels if an employee is affected by their disability.

Helping diabetics to manage their condition will also assist employers in meeting their health and safety obligations to employees and any colleagues or customers who might be affected should a diabetic seizure occur, for example.

What should employers do?

It will not usually be necessary, or indeed helpful, for employers to try to determine whether or not an employee with diabetes is disabled for legal purposes. A reasonable employer should seek to support diabetic employees, whether or not they are legally “disabled” and must, in any event, be mindful of its health and safety obligations.

Time can therefore be more usefully spent on understanding the impact that diabetes is having on the particular individual and their ability to perform their specific job role.

Employers should consider what steps, if any, could reasonably be taken to assist that employee to carry out their role and to do so safely or, if necessary, consider what other roles might be more suitable. Such an assessment should be made – and regularly reviewed – with the benefit of up-to-date medical evidence and following consultation with the individual concerned.

That said, as instances of diabetes increase, employers may be faced with a growing demand for adjustments which may, in turn, make such requests more difficult to accommodate. In those circumstances, if an employer is faced with an employee who is acting unreasonably, it is worth bearing in mind the test for disability and the decision in Stoute, as this may help in resisting any onerous demands.

In the modern workplace, there is an increasing focus on the importance of employee wellbeing. Many employers now offer yoga and exercise classes at work, subsidise gym memberships and run health awareness programmes. These initiatives can not only help to attract and retain talent but can also reduce absenteeism and, in the longer term, may contribute to a reduction in the instances of diabetes in the workplace.

Akshay Choudhry

About Akshay Choudhry

Akshay Choudhry is an associate at Burges Salmon LLP.
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