Diabetes Disability Discrimination

Lightning Deliveries, a small courier service, employs 8 drivers and 4 office staff. Company policy is to preclude from driving, anyone who has a listed medical condition, the list including diabetes. Mandy has driven for the company for several years and has an exemplary driving record. At a routine medical she tells Dr. Jones, the company's occupational health adviser, that she has developed diabetes but that her consultant is optimistic that this can be controlled by diet.

Dr Jones reports this to Personnel, and in line with company policy, Mandy is dismissed. She brings an action under section 4(2)(d) of the Disability Discrimination Act 1995, alleging both less favourable treatment and breach of the duty to make reasonable adjustments. Advise Lightning.

This report will consider the legal and ethical obligations of Lightning Deliveries, to Mandy Jones, a former driver for the company prior to the development of type 2 diabetes. This report will begin with an explanation of diabetes mellitus, and its potential implications for driving. The obligations of Lightning Deliveries, under the legislative framework of the Disability Discrimination Act of 1995 and amendments to the Act that were implemented in October 2004 will be explored.

Type 2 diabetes mellitus is a medical condition characterised by the failure of the pancreas gland to secrete enough insulin to maintain normal range blood sugar levels, and/ or failure of the body to respond to its own insulin (insulin resistance). Untreated type 2 diabetes mellitus is associated with symptoms of chronic fatigue, persistent thirstiness and weight loss. Treatment can typically involve the combination of diet only measures where the sufferer monitors blood sugar using a meter, and possibly tablets. Insulin injections are sometimes introduced where diet only control is not possible (Diabetes UK, 2005). Under current driving law, it is permissible for a driver with diabetes mellitus to keep their license but the Driver and Vehicle Licensing Agency (DVLA) must be informed when the disorder is treated with insulin, and a limited licence will be issued that prohibits the driver from operating large goods vehicles (LGV) and passenger carrying vehicles (PCV). Diabetes mellitus that is controlled by diet and/or tablets does not require reporting to the DVLA at the present time, unless there are additional complications arising from the condition such as retinopathy. The particular risks associated with diabetes mellitus and driving are the onset of hypoglycaemia (low blood sugar) through insulin and tablet treatment. This can be prevented by careful dietary planning by the diabetic. An additional problem is vision difficulties associated with the development of retinopathy; a condition associated with poorly controlled diabetes mellitus over several years (Diabetes UK, 2004). However, research has established that there are no greater risks of hypoglycaemia-related driving accidents associated with type 2 diabetes mellitus (n=332), even when supplemented with insulin treatment and/ or oral medication, compared to the non-diabetic population (n=363) (Cox, Penberthy, Zrebiec, Weinger et al, 2003). Therefore, there is no clinical evidence that type 2 diabetes mellitus, such as suffered by Mandy Jones, would prevent safe driving once the disorder is under control.

From October 2004, small companies such as Lightning Deliveries have been obliged to meet the terms of the 1995 Disability Discrimination Act (DDA). The justification rule is part of section 5(1) and 5(2) of the DDA and requires the employer to demonstrate that ‘reasonable adjustments’ have been made, or failure to make reasonable adjustments is justified (Delany and Moody, 1999). Diabetes mellitus is a disorder covered by the DDA, as a “physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities” (DDA, 1995 Section 1(1)). Mandy Jones is seeking to take legal action against Lightning Deliveries under section 4(2) of the DDA, with point d appearing to have particularly applicability to her circumstances. This section of the act is as follows:

“4(2) It is unlawful for an employer to discriminate against a disabled person whom he employs…(d) by dismissing him, or subjecting him to any other detriment” (DDA, 1995)

Although the basis of Mandy Jones’ claim is section 4(2), it is also clear that section 5 and 6 also apply to her case since it elaborates on the meaning of discrimination, and duties of employers to provide ‘reasonable adjustments’ to the working practices of disabled employees:

“a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified” (DDA, 1995)

In order to assess the liability of Lightning Deliveries, it is necessary to consult previous hearings at the Employment Tribunal, and Court of Appeal, where a type 2 diabetic employee has claimed discrimination under the DDA. In the Jones v Post Office (2001) case, a postman was removed from driving duties on account of him starting insulin treatment. Under internal review, he was allowed by the Post Office to drive for 2 hours per day. This was based on a medical risk assessment that showed adverse outcomes would be associated with longer driving hours. The employment tribunal allowed Mr Jones’ complaint that restricted driving amounted to discriminatory practice under the DDA section 5(1). The judgement was made largely on the basis of medical evidence as to his condition, presented by both sides. The Post Office did not see the medical evidence of the claimant until the Tribunal hearing that showed his actual risk was negligible (Legal Update, 2002). The Post Office were deemed to have failed to show that it was “justified” in restricting the driving duties of the employee. The EAT overruled the initial decision by claiming that the function of the tribunal should have been more limited to assessment of employer’s actions in respect of their disabled employees, in relation to the terms of the DDA:

“The Employment Tribunal, it is submitted, are entitled to consider only whether the reason put forward by the employer is one which is both material to the circumstances of a particular case and substantial” (Jones v The Post Office (2001), p 3)

The Court of Appeal referred to the ‘material’ reasons for an employer discriminating against an employee, and verified that the reasons must be ‘substantial’ and within ‘a band of reasonable responses’ that might be available to an employer (Legal Update, 2002). In essence:

“…it is not necessary of the employer to reach the best possible conclusion after consideration of all known medical science, as long as a proper assessment has been carried out and a decision reached that is not irrational. Thus, a reason may still be material and substantial within the meaning of s.5(3) DDA even if the tribunal would have come to a different decision” (Legal Update, 2002, p 5)

The application of the ‘justification’ rule is subject to controversy (Legal Update, 2002). In the Marshall v Surrey Police case, a female candidate was refused employment on the basis of a medical report indicating previous treatment for manic depression. The Employment Tribunal found that it was not “justified” for the Surrey Police authorities to rely on such evidence in making their employment decisions, since it was supplied by a locum GP who had never met the woman (Legal Update, 2002), and had therefore not acted for material and substantial reasons (Davies, 2003). However, the EAT held that a proper assessment had been undertaken as the Police medical advisor had made a reasonable decision including a psychiatric medical report that had not been allowed at the first tribunal hearing (Davies, 2003).

In conclusion, Lightning Deliveries have a number of obligations to its former employee, Mandy Jones. In the unlikely event of Mandy Jones not winning her claim of discrimination under the DDA at the Employment Tribunal, she may also have recourse to Article 14 of the European Human Rights Act that came into force in 2000. There is no medical evidence that type 2 diabetes mellitus is associated with more driving accidents. A report on the particular condition and treatment by Mandy’s consultant should be obtained in order to conduct a full risk assessment. The decision of Lightning Deliveries to terminate her employment, without a full medical investigation, is outside ‘ a band of reasonable responses’ and is not a rational decision in terms of the DDA. If the consultant verifies that Mandy’s diabetes can be controlled by diet only then there is no reason why she cannot drive for Lightning Deliveries, or be offered alternative mutually acceptable employment until diabetic control has been achieved. Delany and Moody (1999) have shown that few employers consult with their employees about the ‘reasonable adjustments’ that could be made; but Lightning Deliveries should do just that.

References

• Cox D, Penberthy J, Zrebiec J, Weinger K, Aikens J, Frier J, Stetson B, DeGroot M, Trief P, Schaechinger H, Hermanns N, Gonder-Frederick L and Clarke W (2003) Diabetes and driving mishaps. Diabetes Care 26.8, pp 2329 – 2334
• Davies J (2003) A Cuckoo in the Nest? A ‘Range of Reasonable Responses’. Industrial Law Journal 32.3, pp 164 -184
• DDA (1995) Disability Discrimination Act 1995 (HMSO, London)
• Delany L and Moody J (1999) Epilepsy, employment and the disability discrimination. Seizure 8, pp 412-420
• Diabetes UK (2004) Driving and diabetes. Retrieved from: http://www.diabetes.org.uk/infocentre/inform/downloads/Drive04.doc : June 10th 2005.
• Diabetes UK (2005) How is diabetes treated? Retrieved from: http://www.diabetes.org.uk/diabetes/treated.htm : June 10th 2005.
• James P (2000) Monitoring the Disability Discrimination Act 1995. Industrial Law Journal 29.1, pp 85 -87
• Jones v The Post Office (2001) Appeal from the Employment Appeal Tribunal. Case no A1/2000/0294 11 April 2001. Retrieved from: http://www.hmcourts-service.gov.uk : 11^th June 2005
• Legal Update (2002) DDA Trends from the Employers’ Forum in Disability (Slaughter and May, London)

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