Medical evidence is often a crucial resource in disability discrimination claims, but the importance of the quality of the evidence and asking medical experts the right questions was demonstrated in the recent case of Taylor v Ladbrokes Betting and Gaming Ltd.
As the medical evidence did not focus enough on the likely future effects of the Claimant's condition, the Claimant was allowed to appeal against a Tribunal ruling that he was not disabled.
Background
A person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out normal daily activities.
An impairment is still capable of meeting this threshold where:
- the individual has a progressive condition, which is likely to cause a substantial and long-term adverse effect on their activities in the future. In such cases, the individual will be classed as having a disability even before the condition has deteriorated; or
- measures are being taken to treat or correct the impairment and, but for those measures, the impairment would be likely to have a substantial and long-term adverse effect on their daily activities. However, care should be taken to distinguish this from situations where the individual can make reasonable modifications to their lifestyle to limit the effects of the impairment. In such cases, the individual may not satisfy the disability test.
Facts
The Claimant had Type 2 diabetes. After he was dismissed by reason of capacity and misconduct, he brought a claim for unfair dismissal and unlawful disability discrimination. At a Preliminary Hearing, the Tribunal decided the Claimant was not disabled. The Judge relied on evidence given by a Dr Hurel, a Consultant with a special interest in diabetes. Dr Hurel advised that even if the Claimant was not using medication, there would only be a "small possibility" of his condition causing further complications, especially if he followed advice regarding his lifestyle, diet and exercise regime.
The Judge decided that the Claimant did not have a progressive condition because there was only a "small possibility" of future complications and this was not, therefore, a "likely" outcome. In addition, the Judge interpreted Dr Hurel's comments to mean that the Claimant had not taken reasonable steps to modify his lifestyle. For these two reasons it was decided at the Tribunal that Mr Taylor was not disabled.
EAT decision
The appeal Judge commented that the medical evidence provided by Dr Hurel was not particularly clear, because the questions he was asked focused on the past impact of the Claimant's condition, and did not go into sufficient detail about the likely effect of his diabetes in the future.
The question to be answered was whether the Claimant's diabetes was likely to result in him suffering a substantial impairment in the future. In the case of Boyle v SCA Packaging Ltd it was decided that "likely" in this context meant "could well happen". In other words, if a doctor considered there was a chance of something happening that should be taken into account.
The Judge noted that the implications of an individual's failure reasonably to modify their behaviour, however, he also noted that the Equality 2010 Guidance envisaged situations where such modification of behaviour will cease to work, and that this must be taken into account when assessing the effect of the impairment. Further, the possibility of an individual being able to stick to a particular regime should also be considered. The Judge, therefore, concluded that it was wrong to say that the Claimant could not be classed as disabled on the basis of not reasonably modifying his lifestyle. In any event, this wording was not relevant to the criteria for assessing whether a condition was a progressive condition.
The case was remitted to the Tribunal judge to be reconsidered.
Comment
This decision suggests that a failure to stick to a particular regime to control Type 2 diabetes will not necessarily be fatal to a finding that the individual is disabled. In any event, as the appeal Judge confirmed this issue was not relevant to the question of whether an individual has a progressive condition. On this issue, it will be crucial to have evidence addressing the likely future path of the condition for the individual. In this case, the appeal Judge was critical of the medical evidence, commenting that some of the difficulties would have been alleviated if Dr Hurel had been present at the hearing to answer questions, and, indeed, if the right questions in the first instance.
