Obesity, depression and diabetes are not conditions that ordinarily give rise to a view that the persons suffering are disabled. However, under the Equality Bill 2016 (the “Bill”), which is expected to receive Royal Assent towards the middle of the year, depending on the effect of those conditions, that may well be the case and employers will be required to prevent those persons from being discriminated against in the workplace.
An employee will be considered disabled under the Bill if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities.
‘Substantial’ means more than minor or trivial. ‘Long-term’ means 12 months or more but it can also cover recurring, fluctuating and progressive conditions.
Where an employee is disabled, an employer must make ‘reasonable adjustments’ to avoid the employee being at a disadvantage compared to non-disabled people in the workplace.
Certain conditions do not fall under the traditional idea of disability and this can mean that they are not treated as seriously in the work-place; however, in light of the changing equality landscape, employers need to ensure that, not only they, but also their employees are aware of the issues that may arise.
Inappropriate comments to an overweight person are often made under the guise that ‘it’s only a joke’ and there has been a generally-held view that it is more acceptable to make disparaging remarks about someone’s weight as opposed to any other particular characteristic they may possess.
However, such comments can amount to disability discrimination, as was held in the Northern Irish case of Bickerstaff v Butcher, which was the first UK employment tribunal to consider obesity as a disability since the European Court of Justice’s (“ECJ”) ruling in 2014. The ECJ held that whilst obesity does not in itself constitute a disability, if the obesity entails a limitation which results from physical, mental or psychological impairments which hinder the full and effective participation of that person in professional life, on an equal basis with other workers, obesity can be covered by the concept of disability.
In Bickerstaff, the claimant was subjected to comments that he was “so fat he could barely walk” and “so fat he would hardly feel a knife being stuck into him”. The tribunal heard evidence of the claimant’s excessive body mass index, sleep apnoea, gout and mobility issues. Despite the fact that the condition was self-inflicted and could have been improved by changes in lifestyle, the tribunal focused on the impact on the claimant and not the cause and found that the claimant had been harassed for a reason which related to his disability, namely his morbid obesity condition.
There continues to be a stigma attached to mental health issues; often being considered not as serious as physical illness. Yet according to the media, more people are suffering from and being diagnosed with mental health conditions than ever before. Further, the incidence of mental health problems is only likely to continue to increase as a result of the move to a 24/7 work culture resulting in work becoming less of a working day and more like a way of life.
As a result, employers are going to have to have a greater awareness of their employees’ mental (as well as physical) welfare to prevent issues arising and ensure they are able to deal with the issues appropriately if they do arise in order to avoid breaching the upcoming Bill.
In the recent case of Wickers v Colchester Visionplus Ltd t/a Specsavers Opticians, an English employment tribunal held that a director’s comment to an employee with depression that “everyone gets depressed sometimes, you just have to pull yourself together” and that he had no sympathy for “this kind of thing” was discrimination arising from disability. The claimant had resigned after being told in a disciplinary meeting that she was likely to be dismissed after a number of periods of absence. The claimant had been late on the day in question because she had overslept due to her medication. The tribunal held that the effect of the medication on her sleep was something arising from her disability and that both the director's comments and the fact of her resignation amounted to discrimination and harassment.
One particular difficulty that employers will face concerning mental health conditions is whether they know or could reasonably be expected to know that an employee is suffering from such a condition. If so, they will be deemed to have constructive knowledge of the disability and risk being liable for discrimination if they do not deal with the issues appropriately. Given that mental health conditions can materialise in many ways, employers need to be alive to the signs that an employee may be suffering.
A third challenge that will be faced by employers is the rise in the number of people that are being diagnosed with diabetes. As this number rises, the more likely it is that employees with the condition could be viewed as disabled. However, like mental health conditions, diabetes and other auto-immune disorders are often not treated as seriously as they should be.
As with obesity, diabetes itself is not a disability but a person with diabetes can be disabled if it impacts on their ability to carry out their day to day activities. UK guidance on the issue states that:
– 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; and
– 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.
So a type 1 diabetic would likely meet the test because if that person stops taking their injections, it is likely to have a substantial impact on their day to day activities.
Where a type 2 diabetic is able to manage their condition through a healthy lifestyle and diet, the position is not so clear. Under the guidance, the effect of the ‘diet’ should be ignored when determining whether the person is disabled resulting in it being more likely that the person would be held disabled. However this position was undermined by the UK Employment Appeal Tribunal (the “EAT”) in the case of Metroline Travel Ltd v Stoute when it was held that the claimant’s avoidance of sugary drinks was a copying strategy which could not be ignored, which resulted in him being held not disabled. The EAT highlighted the difference between small behavioural adjustments to diet and wider more whole-sale changes to the diet; the latter would be a treatment or correction which should be ignored.
Type 2 diabetes was considered again in the recent case of Taylor v Ladbrokes Betting and Gaming Ltd in which the EAT concluded that the first instance judge had failed to properly consider whether it was a progressive condition as a result of which the claimant might have ended up with a substantial adverse effect in the future meaning that he was suffering from a disability now.
Employers need to be aware not only of the issues relating to diabetes but other conditions, such as coeliac disease, and intolerances that affect their employees’ daily lives and ensure that reasonable adjustments are made to ensure those persons are not discriminated against.
This article provides a brief insight into the issues relating to disability discrimination in respect of characteristics not traditionally or often considered as disabilities and/or giving rise to disabilities. Employers need to ensure that the general workforce are fully aware of the changing law and practice relating to disability discrimination in order to prevent issues arising and in order that managers and senior staff are alert and ready to make the necessary arrangements and adjustments when issues do arise in order to avoid being liable for discrimination under the Bill.