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Request a call back. Employment Judge Gaskell decided that he was not. The parties had agreed to the matter being decided without oral evidence on the basis of a witness statement from the Appellant, reports and letters from doctors and oral submissions from the Appellant, who was representing himself, and from a solicitor representing his former employer, the Respondent.

Today the Appellant has been represented by Mr Young of counsel, acting pro bono under the auspices of the Bar Pro Bono Unit, and the Respondent has been represented by Mr Hills, a solicitor.

The Judgment is short, the arguments have been short, but the potential of the topic under discussion might well be very large.

It is certainly not an easy issue to decide. The Appellant suffers from two conditions: haemochromatosis and type 2 diabetes. This appeal is only concerned with the latter.

In respect of it, Employment Judge Gaskell was assisted by two medical reports from Dr Steven Hurel, a Consultant Physician with a special interest in diabetes.

One was just that, namely a report, dated 4 February , which is at pages 82 to The other was in the form of a letter, dated 11 March , which is at pages 80 and 81 and responded to further questions that had been addressed to the doctor.

The Reasons concentrate to a large extent, if not exclusively, on the contents of those two documents.

The Appellant had been dismissed allegedly by reason of incapacity or misconduct on 4 November He alleged both unfair dismissal and unlawful disability discrimination contrary to section 15 EqA The period under consideration relevant to the question of disability was that from 7 November to 4 November Consequently, Dr Hurel was asked to consider that period but he was also asked some questions about the future.

It is to an extent common ground that perhaps with the benefit of hindsight questions other than those posed to him might have been asked and that he might thus have given more extensive answers relevant to the issues raised under the EqA.

The difference between the parties, however, is that Mr Hills on behalf of the Respondent submits that the material presented by Dr Hurel was adequate for the purpose of making a decision about disability and was properly interpreted by Employment Judge Gaskell, who thus reached an unimpeachable conclusion, whereas Mr Young submits that either the conclusion reached by Employment Judge Gaskell does not follow from the evidence that he had from Dr Hurel or represents a misinterpretation of the relevant statutory material, thus leading to a conclusion that cannot stand.

In the alternative — that is to say, alternative to their primary submissions failing — both submit that the matter ought to be remitted for further consideration by an Employment Tribunal and, unless I have misunderstood it, by Employment Judge Gaskell.

Three statutory provisions are of relevance to this appeal. The first is the definition of disability in section 6 EqA I shall refer only to subsections 1 and 5.

The guidance has been included in the bundle of authorities and clearly Employment Judge Gaskell must have had it in mind, because he says so at paragraph 6 of the Reasons.

Before turning to the relevant passages in the guidance, it is necessary to set the scene by looking at the two relevant provisions in Schedule 1 EqA , because the simple definition at section 6 1 of the EqA is amplified by more extensive provisions in Schedule 1 Part 1.

As I say, two provisions are relevant. As observed by Baroness Hale in her judgment in Boyle , there are conditions that might otherwise amount to an impairment that are very prevalent amongst the population generally.

One of the specific conditions that, whilst it may be progressive, is specifically excluded as a disability is an eye condition that is corrected by spectacles; there may be others.

The nature and definition of disability is, as I said at the outset, a very broad topic, potentially bringing into its scope a number of conditions that for various reasons it might be undesirable to accept as amounting to disabilities.

There is in the other authority put before me by Mr Young, Metroline Travel Ltd v Stoute [] IRLR , a clear anxiety on the part of this Tribunal to ensure that, as Mr Young put it in argument, the floodgates are not opened by regarding a condition as a disability when it might be suffered by a significant proportion of the population and when it can be controlled by a very commonplace and simple measure.

Metroline also involved type 2 diabetes. But there the issue was a slightly different one, and the condition of type 2 diabetes was held to be a disability by reference to the concept of medical treatment dealt with by paragraph 5.

There the Employment Tribunal accepted that the simple step of not imbibing sugary drinks was a measure with the result that the Claimant was disabled.

This was not a particular diet; it was insufficient to amount to a particular diet and therefore did not amount to a measure see paragraph The guidance document is very extensive.

It contains the happy thought, in paragraph 3, that in the vast majority of cases there is unlikely to be any doubt whether or not a person has or has had a disability and that the guidance should prove helpful where the matter is not entirely clear.

I think that is a rather sunny and overoptimistic statement about the scope. I have no statistical information of the incidence of type 2 diabetes in the population of the United Kingdom, but I have the distinct feeling that it is by no means a minority matter, and, as this case and the Metroline case illustrate, it throws up some difficult matters in the context of making a decision about whether it amounts to a disability or not.

Also in that part of the guidance, paragraph B10 is to be found. It deals again with coping and avoidance strategies. It does not explicitly refer back to paragraph B7; indeed, it refers forward to other paragraphs.

It is not the statutory language itself; it is therefore a gloss on it. Employment Judge Gaskell in his short and clear Judgment made a number of specific findings, after having referred himself, as I have already said, both to the guidance and also to a number of authorities.

He considered at paragraph 10 how he should approach the statutory concept of substantial adverse effect. The statutory rubric is not repeated in identical words by the Reasons, but clearly that is the part of the Schedule under discussion.

Paragraph 14 goes on, in effect, to do that. Mr Young took four points arising out of the grounds of appeal. This had in effect produced a new Notice of Appeal.

The first ground relied upon was that Employment Judge Gaskell had erred in relation to the provisions of paragraph 8. That is, in effect, an interpretation argument against the findings that have been made.

The second ground was that there was no evidence to support the conclusion that there was only a small possibility of progression.

I think he positioned his first two points closer to the front of the shop window of his argument than the third and fourth. Mr Young submitted that when analysed paragraph 8 really comprised three stages.

The first matter is that it has to be shown that the Appellant had a progressive condition; secondly, that as a result of that condition he has an impairment and that impairment has an effect on his ability to carry out normal day-to-day activities; but thirdly, that it is not an effect that is a substantial adverse effect.

That of course would be meaningless in terms of section 6, because under section 6 1 b the impairment must have a substantial adverse effect.

The point of paragraph 8 is, as might be understood from the title of the paragraph, to ensure that those whose condition is progressive and who in future may end up with a substantial adverse effect as a result of the deterioration in their condition are to be now regarded as suffering from a disability.

This is achieved by subsection 2 , which is a deeming provision. Earlier, Dr Hurel had referred to the possibility of complications developing. That was, therefore, enough to reach the conclusion that there was a progressive condition as a result of which there was an impairment that had an effect on the ability to carry out normal day-to-day activities and that the right way to look at it was that the effect was not at the time substantial but the evidence was that it might deteriorate in the future.

Had the matter stopped there, it would, submitted Mr Young, have been quite apparent that the Judge had misdirected himself when he came to his conclusion, at paragraph 15, that there was only a small possibility of the condition progressing.

It is of course common ground that Employment Judge Gaskell in paragraphs 13 and 15 and in his analysis of progression was reaching a conclusion not open to him on the factual material when, for whatever reason, he reached the view that the progression of type 2 diabetes is that it becomes at some point type 1 diabetes.

Both parties accept that is not what Dr Hurel says, and neither is it medically correct. Nevertheless, Mr Young does not base his submissions on that error.

Dr Hurel has not in fact expressed any very clear view, if he has expressed a view at all, on the extent to which the longer-term effects of diabetes would have an adverse effect on day-to-day activities.

But in his letter Dr Hurel does appear to have expressed a view. It is in that context that the questions in the letter of 11 March are raised.

The problem with that submission is that in the letter Dr Hurel is not considering 5 years later — that is plain from his answer to question 2 — nor is he considering years later.

He is considering the impact at the present time or, rather, in the period under consideration between November and November The second ground of appeal is a criticism of the conclusion arrived at by Employment Judge Gaskell at paragraph 15 that there was only a small possibility of the condition progressing.

It is in this context that the error is made by Employment Judge Gaskell that the progression would be to type 1 diabetes, but, on the terms of engagement proposed by Mr Young, he is prepared to treat that as a progression to the more significant symptoms of type 2 diabetes as described by Dr Hurel in his report in his answer to the second specific question see pages 87 and 88 of the appeal bundle, a passage to which I have already referred.

The possibility of progression is clearly to be derived from the answer given the degree of progression. Get all the up-to-date Premier League odds , and bet In-Play on the latest action.

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The appeal was allowed and the case remitted for rehearing. The findings made by the Employment Judge were not supported by the medical evidence and the issue of whether the Appellant was suffering from a progressive condition, and therefore should be deemed under paragraph 8 2 of Schedule 1 to the Equality Act to be likely to result in a substantial adverse impairment on his ability to carry out day-to-day activities, should be re-considered in the light of further medical evidence.

The third subparagraph, which I need not read, relates to Regulations that may be made that treat specific conditions as being or not being progressive.

In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability.

In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day-to-day activities.

He is of the view that the claimant could easily control the condition by means of lifestyle; diet; and exercise. There is typographically or syntactically something slightly wrong with that passage, but its meaning is clear.

He, however, factored in what he called the lifestyle — that is, presumably, various choices made by the Appellant about the way that he lives — and he then refers specifically to diet and exercise.

If diabetes control is improved then the symptoms improve and as such this is not a long-term effect if appropriately managed. That is to say, the hyperglycaemia — that is, the elevated glucose level — is not long-term if the condition is appropriately managed.

He goes on to say, however:. These do not usually occur, however, for at least years after developing diabetes. I think it is important to recognise that question cannot be taken entirely in isolation because, looking at the letter, two further questions had been asked in respect of question 5.

Question 5 is to be found at page 88, and it reads as follows:. What impact would his condition of diabetes have on the Claimant if he was not undergoing the relevant treatment?

The acute symptoms of hyperglycaemia listed above are likely to have been more severe had he not been on the medication. The answer, about having been more tired, having greater thirst or a greater urge to pass urine is in relation to that period.

So too must be the second answer, because the second question is a corollary to or follow-on from the first question.

The answer given was as follows:. Without population screening many patients with diabetes would remain undetected in the early stages up to five years as the symptoms are subtle and go unnoticed.

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Read More. Speak to a solicitor for a free initial confidential chat. Request a call back. Employment Judge Gaskell decided that he was not.

The parties had agreed to the matter being decided without oral evidence on the basis of a witness statement from the Appellant, reports and letters from doctors and oral submissions from the Appellant, who was representing himself, and from a solicitor representing his former employer, the Respondent.

Today the Appellant has been represented by Mr Young of counsel, acting pro bono under the auspices of the Bar Pro Bono Unit, and the Respondent has been represented by Mr Hills, a solicitor.

The Judgment is short, the arguments have been short, but the potential of the topic under discussion might well be very large. It is certainly not an easy issue to decide.

The Appellant suffers from two conditions: haemochromatosis and type 2 diabetes. This appeal is only concerned with the latter. In respect of it, Employment Judge Gaskell was assisted by two medical reports from Dr Steven Hurel, a Consultant Physician with a special interest in diabetes.

One was just that, namely a report, dated 4 February , which is at pages 82 to The other was in the form of a letter, dated 11 March , which is at pages 80 and 81 and responded to further questions that had been addressed to the doctor.

The Reasons concentrate to a large extent, if not exclusively, on the contents of those two documents. The Appellant had been dismissed allegedly by reason of incapacity or misconduct on 4 November He alleged both unfair dismissal and unlawful disability discrimination contrary to section 15 EqA The period under consideration relevant to the question of disability was that from 7 November to 4 November Consequently, Dr Hurel was asked to consider that period but he was also asked some questions about the future.

It is to an extent common ground that perhaps with the benefit of hindsight questions other than those posed to him might have been asked and that he might thus have given more extensive answers relevant to the issues raised under the EqA.

The difference between the parties, however, is that Mr Hills on behalf of the Respondent submits that the material presented by Dr Hurel was adequate for the purpose of making a decision about disability and was properly interpreted by Employment Judge Gaskell, who thus reached an unimpeachable conclusion, whereas Mr Young submits that either the conclusion reached by Employment Judge Gaskell does not follow from the evidence that he had from Dr Hurel or represents a misinterpretation of the relevant statutory material, thus leading to a conclusion that cannot stand.

In the alternative — that is to say, alternative to their primary submissions failing — both submit that the matter ought to be remitted for further consideration by an Employment Tribunal and, unless I have misunderstood it, by Employment Judge Gaskell.

Three statutory provisions are of relevance to this appeal. The first is the definition of disability in section 6 EqA I shall refer only to subsections 1 and 5.

The guidance has been included in the bundle of authorities and clearly Employment Judge Gaskell must have had it in mind, because he says so at paragraph 6 of the Reasons.

Before turning to the relevant passages in the guidance, it is necessary to set the scene by looking at the two relevant provisions in Schedule 1 EqA , because the simple definition at section 6 1 of the EqA is amplified by more extensive provisions in Schedule 1 Part 1.

As I say, two provisions are relevant. As observed by Baroness Hale in her judgment in Boyle , there are conditions that might otherwise amount to an impairment that are very prevalent amongst the population generally.

One of the specific conditions that, whilst it may be progressive, is specifically excluded as a disability is an eye condition that is corrected by spectacles; there may be others.

The nature and definition of disability is, as I said at the outset, a very broad topic, potentially bringing into its scope a number of conditions that for various reasons it might be undesirable to accept as amounting to disabilities.

There is in the other authority put before me by Mr Young, Metroline Travel Ltd v Stoute [] IRLR , a clear anxiety on the part of this Tribunal to ensure that, as Mr Young put it in argument, the floodgates are not opened by regarding a condition as a disability when it might be suffered by a significant proportion of the population and when it can be controlled by a very commonplace and simple measure.

Metroline also involved type 2 diabetes. But there the issue was a slightly different one, and the condition of type 2 diabetes was held to be a disability by reference to the concept of medical treatment dealt with by paragraph 5.

There the Employment Tribunal accepted that the simple step of not imbibing sugary drinks was a measure with the result that the Claimant was disabled.

This was not a particular diet; it was insufficient to amount to a particular diet and therefore did not amount to a measure see paragraph The guidance document is very extensive.

It contains the happy thought, in paragraph 3, that in the vast majority of cases there is unlikely to be any doubt whether or not a person has or has had a disability and that the guidance should prove helpful where the matter is not entirely clear.

I think that is a rather sunny and overoptimistic statement about the scope. I have no statistical information of the incidence of type 2 diabetes in the population of the United Kingdom, but I have the distinct feeling that it is by no means a minority matter, and, as this case and the Metroline case illustrate, it throws up some difficult matters in the context of making a decision about whether it amounts to a disability or not.

Also in that part of the guidance, paragraph B10 is to be found. It deals again with coping and avoidance strategies.

It does not explicitly refer back to paragraph B7; indeed, it refers forward to other paragraphs. It is not the statutory language itself; it is therefore a gloss on it.

Employment Judge Gaskell in his short and clear Judgment made a number of specific findings, after having referred himself, as I have already said, both to the guidance and also to a number of authorities.

He considered at paragraph 10 how he should approach the statutory concept of substantial adverse effect. The statutory rubric is not repeated in identical words by the Reasons, but clearly that is the part of the Schedule under discussion.

Paragraph 14 goes on, in effect, to do that. Mr Young took four points arising out of the grounds of appeal. You can bet online on whatever you fancy — from the latest sports betting to the thrills of the Casino.

We use cookies to provide you with a great user experience. By using Ladbrokes, you agree to our use of cookies.

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