There are around 4.5 million people living with diabetes in the UK and approximately 700 diagnoses per day, the equivalent of one person every two minutes. In the last 20 years, the number of people diagnosed with diabetes in the UK has more than doubled and it is estimated that there are around 1.1 million people in the UK who have diabetes but have not been diagnosed.
This week is Diabetes week which aims to raise awareness of the condition, and we, therefore, thought it would be a good opportunity to consider an employer’s obligations and how they can help employees who have this lifelong condition.
Is diabetes a disability?
“Disability” is defined in the Equality Act 2010 as a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.
There are 2 types of diabetes: type 1, which is an autoimmune condition affecting around 10% of sufferers and type 2, which is caused by a complex interplay of genetic and environmental factors and affects around 90% of sufferers.
There is no straightforward answer as to whether diabetes amounts to a disability for the purposes of the Equality Act. Each case would be assessed on its own facts, and would focus on the impact the condition has on the employee’s ability to carry out day to day activities and whether a treatment or correction or a coping or avoidance strategy was applied to manage it.
If a condition is treated or corrected, guidance suggests the effect of that treatment or correction should be ignored when assessing the condition and its impact on the employee but 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.
While there has been some case law which has found type 2 diabetes does not to amount to a disability, these cases have been very specific on their facts and, given the nature of the condition, it is our view that an employee with diabetes will often be able to demonstrate that it does amount to a disability under employment legislation. We would, therefore, recommend that you treat any employee with either type of diabetes as having a disability and consider whether there are any reasonable adjustments which you can make.
Employers should also be aware that diabetes can also cause related conditions and complications which in themselves may amount to a disability for which there will need to be further consideration as to reasonable adjustments.
An employer’s obligations
The Equality Act is a very wide-ranging piece of legislation which prohibits direct and indirect disability discrimination, discrimination arising from disability, disability harassment and victimisation in the workplace. It covers the recruitment process right through to post-termination processes such as giving references, and is applicable to many types of workers from agency workers to directors.
Employers are obliged to make reasonable adjustments for disabled employees and job applicants whose disabilities place them at a substantial disadvantage. What is reasonable will depend on the precise circumstances of each case and could include flexibility in the way the employee works and their working hours, the provision of modified equipment where diabetes has caused physical problems for the employee such as visual defects, breaks during which the employee can eat food, take their insulin injections or do blood tests and private space in which to do so and time off for medical appointments in relation to their diabetes and any associated conditions. Employers should also consider whether it is necessary to make adjustments to absence management triggers or productivity bonuses in order to avoid direct or indirect disability discrimination.
Practical considerations
Aside from any legal obligations which arise, employers are encouraged to take a practical stance in relation to dealing with employees with diabetes. Regular discussions as to the impact the condition is having on the employee’s health and wellbeing (and consequently their performance) and what the employer can do to assist are key to managing the employee’s condition within the workplace. Employers should also ensure they obtain medical evidence regularly in order to inform their decisions as to how best to assist the employee.
It can also be helpful for other employees to have an awareness of a colleague’s diabetes. For example, it is important for colleagues to be able to recognise the symptoms of a hypoglycaemic episode (a “hypo”, which occurs as a result of low blood glucose levels), know what treatments are suitable and where they can be found (e.g. a person’s drawer or handbag) and if necessary, administer them. It may also be helpful to have an emergency hypo box containing the correct treatments within the workplace.
However, if you have any queries about managing an employee with diabetes (or any other condition which could potentially amount to a disability), such as whether a request for an adjustment is reasonable, or how to manage a long-term sickness absence related to their condition, you should always take legal advice given the potential for an uncapped disability discrimination award where a situation is not managed within the confines of the law.
