Stoute was a bus driver, dismissed from Metroline Travel for gross misconduct. He claimed that he was ‘disabled’ (as defined in the Equality Act) and that his employer’s actions in dismissing him were discriminatory in that inadequate account was taken of his disability. This is a common cause of conduct when employees are dismissed, and one of the reasons why myHRdept consultants will always ask whether an employee a client is contemplating dismissing has one of the 9 protected characteristics defined under the Act. The reason why we ask the question is to determine whether our client’s contemplated actions could be construed as discriminatory conduct, even if the real reason for the actions is nothing of the kind – tribunal awards for discrimination are uncapped, and so errors here can be costly.
Returning to Mr Stoute’s case, the tribunal agreed that he was disabled and it was this finding that Stoute’s employers appealed to the Employment Appeal Tribunal (the EAT.) His Honour Judge Serota QC disagreed that type 2 diabetes should necessarily be regarded as a ‘disability’, sensibly commenting that Stoute’s need to avoid sugary drinks did not constitute a ‘substantial adverse effect on day-to-day activities’ (something that is required for a condition to be regarded as a ‘disability’.)
HHJ Serota confirmed that while the need to control his diet was ‘long term’ (another determinative factor of ‘disability’) Stoute (and in future most other employees trying to assert they are disabled because of type 2 diabetes) was not at any particular disadvantage, was not disabled, and so could not bring a disability discrimination claim. To rub salt in the wounds Stoute’s other claims failed and he was also required to pay £1600 EAT fees.
For employers the good news is that type 2 will not, on its own merit at least, be accepted as a disability. One less hurdle to fall over then.
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