How one can keep away from disability discrimination

Diabetes at work will pose a public health threat and challenge as more employees may be considered disabled.

Diabetes will become an increasing challenge at work as the number of people with the condition increases and more employees may be considered disabled. Akshay Choudhry, a Burges Salmon employee, looks at the impact.

3.9 million people in the UK have diabetes, according to NHS Choices. By 2025 this number is expected to rise to five million; This corresponds to more than 1 in 13 people. As diabetes at work grows as a public health threat, it will become increasingly challenging as more employees could be viewed as disabled

As many know, there are two main types of diabetes: Type 1 and Type 2. The latter type is on the rise as it is related to lifestyle factors such as obesity and poor diet. While the European Court of Justice (ECJ) ruled last year in the Karsten Kaltoft v. Kommunernes Landsforening case that obesity itself is not a protected characteristic for discrimination purposes, its consequences – like type 2 diabetes – can constitute a disability.

While a diagnosis of diabetes does not automatically mean that a person is disabled, people with the condition can be considered disabled under the Equal Opportunities Act if they pass the statutory test. In essence, the extent to which diabetes affects the employee’s ability to carry out their daily activities determines whether or not they are protected.

Application of the disability test to diabetes

The law, which is supported by guidelines on what to consider when determining a disability (the guidelines), suggests that when determining whether or not the disability test is passed:

• When treating or correcting a condition, the effect of that treatment or correction should be ignored in assessing the condition and its impact on the worker. or
• If a condition is managed using a coping or avoidance strategy, the impact of that coping or avoidance strategy should be considered when evaluating the condition and its impact on the employee.

These instructions can be crucial in determining whether or not a diabetic will pass the disability test, but it is not particularly easy to use.

The example used is a person with diabetes who is controlled by medication or diet. This person should be assessed on the effects of their diabetes if they are not taking this drug or following the required diet.

For example, a diabetic who injects insulin regularly may not show any obvious signs of impairment. However, if that person stops taking the injections, their diabetes can have a significant impact on their ability to carry out everyday activities. For this reason, it is often uncomplicated for an insulin-dependent diabetic or type 1 diabetic to pass the disability test, although the disability test should still be considered in each individual case.

Similarly, a type 2 diabetic whose condition has progressed to the point of needing medication or insulin injections is likely to be disabled under the law.

However, the issue of disability is more difficult to determine when an individual will be able to manage their condition through, for example, good nutrition.

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

Here the EAT noted that Mr. Stoute’s avoidance of sugary beverages was a coping strategy (as opposed to treatment), which meant that it should not be ignored in assessing whether or not his condition was a disability. This led to the finding that he was not disabled within the meaning of the law.

The EAT appears to have distinguished between relatively minor or minor behavioral changes in diet that it viewed as a coping or avoidance strategy as opposed to more significant or extensive diet changes that would constitute treatment or correction. However, the EAT’s decision has been criticized, not least because it creates greater uncertainty for employers in managing diabetics.

Impact on employers

If an employee passes the statutory disability test and is disadvantaged by it, their employer must make reasonable adjustments to mitigate the effects of the disability. For a diabetic, this may mean taking breaks for insulin injections or glucose intake, or giving time off to attend medical appointments.

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

Helping diabetics manage their condition also helps employers meet their health and safety obligations to employees and any colleagues or customers who may be affected if, for example, a diabetic attack occurs.

What should employers do?

It is usually not necessary or helpful for employers to determine whether or not an employee with diabetes is legally disabled. A sensible employer should seek to support diabetic workers, whether or not they are legally “disabled”, and must definitely consider their health and safety obligations.

Time can therefore be better spent on understanding the impact of diabetes on the individual and their ability to fulfill their specific professional role.

Employers should consider what steps, if appropriate, could be taken to assist this worker in fulfilling their role and to do so safely, or, if necessary, consider what other roles are more appropriate. Such an assessment should be made, taking into account current medical evidence and after consulting the person concerned, and should be reviewed regularly.

However, as diabetes increases, employers may face growing demands for adjustments, which in turn makes it difficult to process such requests. In these circumstances, if an employer is faced with an employee who is acting inappropriately, the disability test and decision in Stoute should be considered as this can help withstand stressful demands.

In the modern workplace, increasing importance is attached to the well-being of employees. Many employers now offer yoga and exercise classes at work, subsidize gym memberships, and run health education programs. Not only can these initiatives help attract and retain talent, but they can also reduce absenteeism and, in the long term, reduce the incidence of diabetes in the workplace.