Mr. Domingo Da Costa v Imperial College Healthcare NHS Trust — 2022

The open preliminary hearing on 7 April 2022 determined whether Mr Domingo Da Costa was disabled by reason of Type 2 Diabetes for the purposes of his disability discrimination claims against Imperial College Healthcare NHS Trust. The tribunal found that the relevant period was 6 April 2021 to 10 October 2021, covering the period between the first alleged disability discrimination and presentation of the ET1. It was not disputed that the Claimant had Type 2 Diabetes and that it was a physical impairment, but the Respondent disputed that it had a substantial adverse effect on normal day-to-day activities.

The tribunal found that there was a general lack of medical evidence beyond diagnosis and medication. It found no evidence that, apart from dietary matters, the Claimant's Type 2 Diabetes adversely affected any normal work or non-work activity during the relevant period. It also found that the Claimant had not provided medical evidence identifying activities that would be adversely affected if he stopped taking one or more of his medications or stopped following dietary advice. The tribunal treated the absence of such evidence as a serious impediment and applied Woodrup v London Borough of Southwark.

On diet, the tribunal found that the advice followed by the Claimant was relatively moderate, involving advice to avoid or minimise certain foods rather than an absolute prohibition. It considered the diet sufficiently close to the position in Metroline Travel Ltd v Stoute and not enough to show a substantial adverse effect on normal day-to-day activities. The tribunal also rejected the alternative progressive-condition argument, finding no medical evidence that the Claimant's Type 2 Diabetes was a progressive condition during the relevant period and no medical prognosis showing that the progressive-condition provisions applied.

The tribunal concluded that the Claimant was not disabled by reason of Type 2 Diabetes in the relevant time. His direct disability discrimination claim under s.13 Equality Act 2010 and discrimination arising from disability claim under s.15(1) Equality Act 2010 were therefore not well-founded and were struck out under Rule 37(1)(a). The judgment also recorded that an indirect disability discrimination claim had previously been dismissed following withdrawal, and declined the Respondent's deposit order application in respect of the separate age discrimination claim. No remedy was awarded or assessed in this judgment.