The Employment Appeal Tribunal (EAT) has held in Taylor v Ladbrokes Betting and Gaming Ltd that when considering whether a condition is progressive, the issue for tribunals is not the “reasonable conduct” of the disabled person, but whether their condition is “likely” to result in them having an impairment which has the required substantial adverse effect on their ability to carry out normal day to day activities.
Basic facts
Mr Taylor, who suffered from type 2 diabetes, was dismissed by Ladbrokes for incapacity or misconduct on 4 November 2013. Among other things, he claimed disability discrimination contrary to section 15 of the Equality Act 2010 on the basis that, because of his diabetes, he had been disabled from 7 November 2012 to 4 November 2013.
Relevant law
Paragraph 8, schedule 1, part 1 of the Act states that a person, who has a progressive condition which has (or had) an effect on their ability to carry out normal day to day activities which is not a substantial adverse effect, will still be able to establish that they are disabled for the purposes of the Act, if their condition is likely to result in the impairment having the necessary substantial adverse effect.
Tribunal decision
At a preliminary hearing to decide whether Mr Taylor was disabled under the meaning of the Act, the tribunal considered two medical reports written by a specialist.
The judge interpreted these to mean that Mr Taylor’s current condition had no adverse impact on his ability to carry out normal day to day activities; and that there was only a “small possibility” it would progress to type 1 diabetes even if he stopped using the medication.
The judge also understood the report to say that Mr Taylor could easily control the condition if he were to follow medical advice on his lifestyle, diet and exercise regime but that he had “not taken basic steps in this regard which might reasonably have been expected of him”.
Based largely on the opinion expressed in these reports, the tribunal judge held that the condition was not progressive and Mr Taylor was not disabled. He appealed arguing (among other things) that the judge had misinterpreted paragraph 8 and that he misread the medical evidence when he concluded that there was only a “small possibility” that the condition would progress.
EAT decision
The EAT allowed the appeal on the basis that the employment judge had not addressed himself properly to the question of whether Mr Taylor’s diabetes was a “progressive condition” under paragraph 8. Instead of considering the effect that his condition might have on him in the future (as required by paragraph 8), the tribunal judge had wrongly focused on a period of time in the past.
In addition, the findings made by the judge were not borne out by medical evidence and he did not seem clear as to exactly what he had to decide. This was not helped by the fact that the medical evidence had conflated what might happen in the present with what might happen in the future.
The EAT made clear that the issue for tribunals is not the “reasonable conduct” of the disabled person, but whether their condition is “likely” to result in them having an impairment. Their job was not to consider what might happen to a proportion of the population, but whether the medical evidence suggested there was a chance of something happening in the case in question.
The EAT remitted the issue back to the tribunal to reconsider in the light of further medical evidence.