Can you claim disability discrimination for a nut allergy?

By on July 24, 2013
allergy_chefshat

Back in April, a story about a nut allergic chef caught my eye. The Kidderminster Shuttle reported that the chef (Mr Wheeldon) had been given the go ahead to pursue a disability discrimination claim against his employers (Marstons plc), on account of his nut allergy. At a preliminary hearing, the Birmingham Employment Tribunal held that an allergy to nuts was a “disability” under the Equality Act 2010 (EA 2010).

Even as the mother of a toddler with a life threatening peanut allergy, I could see the apparent irony: a chef claiming discrimination on account of his food allergy? But then thinking about it further, why should it follow that a chef had to have contact with nuts? Perhaps his kitchen or team could reasonably be organised in such a way that Mr Wheeldon could do his job without handling nuts? This case also raises the question of whether a food allergy should be classified as a disability, and, also, how far could this go? Will this open up the possibility of discrimination claims by allergy sufferers against other service providers?

What constitutes a “disability” under the Equality Act 2010?

Most of the EA 2010 came into force on 1 October 2010. It prohibits discrimination in respect of various “protected characteristics”, one of which is “disability”. Supplementary regulations set out the conditions that are automatically deemed to be disabilities (for example, blindness) and also the excluded conditions, which are not disabilities under the EA 2010. For anything falling inbetween, you need to look at section 6 (and schedule 1), which provides that a person has a disability if:

  • they have a physical or mental impairment, and
  • the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

The guidance accompanying the legislation states (at paragraph D3) that:

“day-to-day activities are things people do on a regular or daily basis, and examples include … preparing and eating food … and taking part in social activities.”

So, to break this down, it seems safe to say that a person with a severe nut allergy:

  • Has a physical impairment.
  • Which has an adverse effect on their ability to carry out normal day-to-day activities, such as preparing and eating food and socialising; and
  • The effect is long term (given it is likely “to last for at least 12 months, or … for the rest of the life of the person affected” (paragraph 2(1), Schedule 1, EA 2010)).

The allergy sufferer would need to show that, in their case, the effect was “substantial” (namely, “more than minor or trivial” – section 212, EA 2010).

Once the allergy sufferer had established that s/he had a “disability”, they would then also have to show that:

  • “a provision, criterion or practice” of their employer puts them at a substantial disadvantage compared to a person who is not disabled; and
  • the employer has not “take[n] such steps as …  is reasonable … to avoid the disadvantage”.

(section 20(3), EA 2010).

Wheeldon v Marstons: the case of the nut allergic chef

The Wheeldon v Marstons plc ET/1313364/2012 case report is available to subscribers from XPertHR. According to various press reports, Mr Wheeldon had been employed by Marstons for 10 years. In October 2011, he had a severe allergic reaction to nuts whilst at work. He did not return to work and brought the disability discrimination claim, arguing that Marstons should make suitable adjustments to his workplace to enable him to carry out his role. The judge at the pre-hearing review, Mr Bryn Lloyd, thought that Mr Wheeldon’s nut allergy could constitute a disability, noting that Mr Wheeldon had been ”compelled to alter his lifestyle after discovering that he had a severe allergy to nuts”. There will be a full tribunal hearing later this year, unless the parties reach a settlement in the meantime.

As one US commentator put it: can a chef who is allergic to food be accommodated in a restaurant? Like the top showjumper whose career ended when she developed an allergy to horses: is having a nut allergy incompatible with being a chef? I’m guessing it might be reasonable in some cases for a nut allergic chef to work in a separate area of the kitchen and only prepare nut free dishes. I will certainly be watching out for reports of the full hearing.

Should a nut allergy be classed as a disability?

Irrespective of whether it satisfies the requirements of the legal definition in the EA 2010, should a severe nut allergy be classed as a “disability”?

I imagine this is an issue which will polarise opinions. On one hand, some would argue that an allergy not in the same league as some other disabilities. The other view would be that allergy is a chronic condition which does have a massive (albeit, in many cases, manageable) impact on the sufferer’s day-to-day life.

One New Zealand allergy mum described her son’s allergy as

“an invisible disability. There’s nothing wrong with Finn until he has an allergic reaction.”.

Would I say my son was “disabled” on account of his allergy? No, I would shy away from doing that. However, that maybe partly down to a coping mechanism. You know the one. Where you tell yourself  ”so long as he doesn’t eat nuts and we are ready for an emergency, all will be fine”. That and “there’s plenty of people in the world who are worse off than us”.

How far could this go?

Saying that, how would I feel if we found ourselves being charged more for D to attend nursery, to eat safely in a restaurant, to fly? I’d be up in arms. Depending on the circumstances, I might be so outraged that I might turn to the provisions of the EA 2010 and see if we had a claim…

Under the EA 2010, goods, facilities and service providers have a responsibility not to directly discriminate against someone with a disability. This means a business cannot treat a person less favourably than someone else because they have a disability. There is no justification under the EA 2010 for direct discrimination. So (assuming a severe nut allergy IS a disability under the EA 2010), then if a nursery’s pricing structure was £50 a day for non-allergic children and £500 a day for those with nut allergies, or an airline decided to ban nut allergy sufferers from flights, my reading is that this would be direct discrimination and unlawful under the EA 2010.

The EA 2010 also prohibits indirect disability discrimination by businesses. According to the government’s quick guide, indirect discrimination occurs where:

“a business applies a policy, criterion or practice in the same way to all individuals, but that policy has an effect that particularly disadvantages disabled people.”

The business would need to justify its policy by showing it is a “fair and reasonable way of achieving a legitimate aim”. However, “the sole aim of reducing costs is likely to be unlawful”. If reasonable in all the circumstances, the business is under an obligation to make reasonable adjustments to make its service available to disabled people.

So (again assuming that a severe nut allergy is a disability under the EA 2010), might restaurants who currently say they cannot cater for nut allergy sufferers, be required to reconsider their policies and think about whether it is possible to make a reasonable adjustment to provide some nut free menu options?

For these reasons, I think the final decision in Wheeldon v Marstons is definitely one to watch.

Update (September 2013)

For more information, see my subsequent posts:

Further information / sources

About Louise @ NutMums

City solicitor turned full time mum and food allergy blogger. Writes and tweets (@nutmums) about all things peanut and nut allergy, from a parent's perspective.

2 Comments

  1. allergybabe

    December 17, 2013 at 9:16 pm

    thanks for all the work you put into this. ;-)

  2. allergybabe

    December 17, 2013 at 9:19 pm

    thanks for all the work you put into this. ;-) Cannot wait to see how this case will turn out.

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