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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. The scale of progression cannot be derived either from the main context, which is that the longer-term effect is to develop the conditions, or from the fact that is all the more so when the diabetes is poorly controlled.

In neither sense of the syntactical structure of that sentence can one derive the proposition that this is a small possibility.

It seems to me that this must clearly be what Employment Judge Gaskell has done. Indeed, even if it is a summary of what Dr Hurel says, in order for his views on the matter to be relevant to paragraph 8 2 there has to be some medium through which those views can be applied.

Looking at the language of the Schedule and the subparagraph, it is not immediately apparent to me that one should include the concept of reasonable conduct on the part of the allegedly disabled person within paragraph 8 2.

At first sight, it looks as though it is simply a question of causation. The question is this: is the condition likely to result in his having an impairment?

Mr Hills submits that that still leaves open the question of whether even if this is a small possibility that is something likely to happen.

That is an entirely understandable approach to concepts of predicting the future, but I do not regard it as consistent with the judgment of the House of Lords in Boyle.

What is at issue is not whether something is likely to occur by reference to any definite percentage or proportion of the population in whom the condition may occur, recur or deteriorate.

It is, as explained by the House of Lords, an issue of whether a doctor would consider there is a chance of something happening.

Consistent with the approach of Lord Rodger, it does not seem to me that the way in which a doctor would approach a condition that might deteriorate would be on the basis as to there being just a very small chance of it deteriorating or there being a small chance of it deteriorating but on the basis as to whether in terms of medical science in any given population it was a risk to which that population was exposed and that some proportion of that population would suffer a deterioration.

In the terms used by Employment Judge Gaskell, it seems to me that even if there is a small possibility of deterioration in a population that is enough to make it likely that it might result in the particular individual having such an impairment.

Moreover, it seems to me that one must be very careful with the concept of the effect of medical treatment. Mr Hills submits that if somebody could take steps that would result in the risk of future deterioration either being eliminated or very much reduced then if they failed to take steps, what the guidance of B7 envisages is that one will take account of their behaviour and if they have failed to use what is called in the guidance a coping or avoidance strategy then that person must be presumed not to be disabled.

He says that the way in which Employment Judge Gaskell has interpreted Dr Hurel is that the chances are that if the Appellant modifies his lifestyle, exercises and is careful in terms of diet then his condition is not likely to result in the impairment having a substantial adverse effect in the future and if he does not modify his lifestyle then that is unreasonable conduct on his part.

That is how paragraph 8 2 is intended to work. Plainly, looking at paragraphs 14 and 15, that is how Employment Judge Gaskell approached this matter.

Mr Young pointed out the wording of paragraph B10, which I referred to earlier, and said that meant the possibility of somebody being unable to keep to a particular regime notwithstanding its health-giving benefits is something that ought to also be taken into account and this was clearly so in the case of the Appellant.

This is how the words of Dr Hurel should be interpreted. In ground 3, it is said that the Judge erred by taking into account wrong lifestyle choices on the part of the Appellant and these were not measures under paragraph 5, as was demonstrated by the Metroline Ground 4 simply makes the general proposition that there was inadequate evidence for the finding at paragraph 14 that there would be no adverse impact on the ability to carry out normal day-to-day activities.

It seems to me that this case has been tackled by Employment Judge Gaskell on the basis of the material that he had before him.

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