Diabetes and disability issues

Diabetes is a hot potato issue these days; here’s what you need to know

There are an estimated 4.5 million people in the UK today with diabetes; this includes around 1 million people who have type 2 diabetes but don’t know yet because they have not been diagnosed!

Type 2 diabetes is the most common type: it accounts for around 90% of diabetes sufferers and is a long term metabolic disorder. The symptoms often appear slowly over a long period of time. If managed correctly with diet, weight control and exercise it is often possible to stave off type 2 diabetes indefinitely. I know people who have done this; they can often be seen wandering the isles in supermarkets checking the glycemic index on breakfast cereal packets.

Poor diet choices and a high stress / low exercise lifestyle are believed to be behind a significant increase in diabetes over the last 30 years. ‘Significant’ is an understatement unfortunately: the increase in diabetes worldwide has been more than ten fold since 1985.

So on average more than 1 in 10 of those employed in the UK has diabetes (diagnosed or undiagnosed) and all expectations are that this will continue to increase.

So what do UK employers need to be aware of?

From an employment law perspective the obvious issues relate to the Equality Act 2010 and whether or not 1/10th of our workforce is disabled.

As a general rule of thumb employers cannot lawfully treat employees less favourably because of something connected with a disability. Like for example: their attendance, or their work performance.

Then there is the employers’ duty to make reasonable adjustments to counter-act disadvantages caused by a disability (e.g. time off work to attend appointments, breaks for insulin injections, etc).

But here is the thing: usually a disability will involve a substantial effect to the employee’s ability to do normal day to day activities, so employers are more likely to be aware that there is an issue and that they need to consider ‘disability’ type issues.

However, a recent court decision highlights that diabetes, as a progressive condition, can qualify as a disability even if it does not yet have a substantial effect (as long as this is likely to be so in the future).

To further complicate matters, measures that reduce or avoid a substantial effect (i.e. medication or any other treatment) must be disregarded. The questions is: what would the effect be without the treatment? So even a crystal ball won’t always help employers know if they have these duties.

All of this means employers need to be much more vigilant when dealing with employees who have disclosed that they have diabetes, or who are displaying the common symptoms. Being overweight is not itself a disability: but it is increasingly going to be a strong indicator that diabetes is a high risk.

If someone has diabetes (or you have reason to believe they may have it), the safest route will be to assume they have a disability and treat them accordingly.

This means investigating the nature and effect of any condition (think: occupational health referral plus an ongoing dialogue with the employee in question) and being proactive about making adjustments.

Knowledge of Disability

Employers have a duty to make reasonable adjustments for disabled employees under Section 21 and Section 20 Equality Act 2010.

However, Section 15 provides that the Employer does not discriminate if he did not know, and could not reasonably be expected to know that the Employee is disabled.

So, what if the Employer seeks professional advice from an Occupational Health provider and is informed (incorrectly) that the Employee does not qualify as disabled within the meaning of the legislation? Does this mean that the employer ‘does not know and cannot reasonably be expected to know that the Employee is disabled’?

You would be forgiven for thinking that the Employer could rely upon the expert’s advice and safely conclude on this basis that the Employee is not disabled. However, the Court of Appeal in Gallop v Newport City Council has decided that although Employers should seek advice from appropriately qualified medical advisors, they nevertheless cannot rely upon what they are told and merely ‘rubber stamp’ the advice. The Employer must make its own factual judgment as to whether or not the Employee is disabled.

This places a most uncomfortable burden on Employers, who cannot even rely upon what qualified medical professionals tell them and have to decide upon disability themselves when the issue taxes a great many Employment Judges.