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HCR Law Events

6 December 2021

Disability discrimination and lifestyle choices: does the doctor know best?

When illness strikes, a lot of us are guilty of looking up symptoms on the internet to self-diagnose and find out how best to treat those symptoms. Sometimes the information gleaned from various websites is useful, sometimes not.

Seeking medical advice is prudent. However, what happens when someone receives such advice but ignores it, relying instead on their own research, and claiming that their own methods of addressing their illness results in them being “legally” disabled?

To be regarded as legally disabled, the Equality Act 2010 (2010 Act) says that the person must have a physical or mental impairment. The impairment must also have a substantial and long-term (i.e. more than 12 months) adverse effect on their ability to carry out normal day-to-day activities.

If an employee is legally disabled for the purposes of the 2010 Act, they have a number of protections from being discriminated against by their employer because of their disability.

In the recently published case of Primaz -v- Carl Room Restaurants Limited T/A McDonald’s Restaurants Limited and Others, Miss Primaz believed she had been treated unlawfully by her employer and brought a claim for disability discrimination in an employment tribunal.

Miss Primaz suffered from epilepsy and vitiligo, the latter a condition in which the skin loses its pigment cells.

To manage her conditions, Miss Primaz avoided coffee, alcohol, cosmetics, cleaning products and sunlight, believing that they would trigger her symptoms.

The avoidance of potential triggers with respect to her epilepsy resulted in the adoption of what the tribunal described as “a restricted, spartan lifestyle, which is an important part of the impact this impairment has on her”.

The lifestyle consequences, together with post-seizure symptoms and investigation of possible treatment, had an adverse impact on her day to day activities. The tribunal decided these effects were substantial and had lasted in excess of 12 months.

The tribunal found that, because of these consequences, Miss Primaz was a disabled person for the purposes of the 2010 Act. The employer appealed against this decision to the Employment Appeal Tribunal (EAT), which allowed the appeal on this ground.

Miss Primaz’s beliefs of how best to address her illnesses were genuine and strongly held. However, there was no medical evidence to support her beliefs. Further, she had been advised to take anti-convulsant medication but, contrary to this medical advice, she refused to do so. She believed the best approach was to do as she was doing – adopting a restricted lifestyle.

The EAT said that where the individual was following sound medical advice in that indulging in a particular activity could cause harm due to their condition, having to make substantial lifestyle changes may well be enough to qualify the individual as disabled for the purposes of the 2010 Act.

That, however, was not the case here. Instead, Miss Primaz had decided to adopt these lifestyle changes despite there being no medical evidence to suggest this was appropriate. Along with this she had ignored her doctor’s advice to take medication.

The key issue for the EAT was what medical advice and evidence actually existed. Here, there was no such advice or evidence to back up Miss Primaz’s beliefs.

Indeed, the EAT went on to say that the fact the individual has avoided the activity and has not experienced any harmful effects would not matter. What matters is whether or not a tribunal is satisfied, by appropriate medical evidence, about the harmful impact that would have ensued had the individual indulged.

If the tribunal is not satisfied of that, then the individual’s decision to abstain from certain lifestyle choices out of conviction cannot be enough for them to be protected by the 2010 Act.

Here, Miss Primaz stuck to her views based on her own research because she believed they were right, and the contrary advice from her clinicians was simply wrong. As there was no medical advice or evidence to back her views, the lifestyle changes were not medically a consequence of her conditions, and so the 2010 Act protections were not available to her.

In summary when it comes to adaptations which an individual puts in place in the belief they will help address their conditions, at least for the purposes of the protections given by the 2010 Act and the ability to bring claims, the doctor really does know best.

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About the Author
Nicholas Hall, Partner

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