View More

Do you avoid products with precautionary labels (“may contain nuts” or equivalent wording)? We do. A fellow nut mum recently asked me why this was, as her doctors had advised that she could safely ignore such warnings. I thought it would be worth explaining my thinking.

Our doctors’ advice

We were given the same advice when my son, D, was first diagnosed with a peanut allergy. Our allergy doctors told us (1) to check the ingredients list on food labels, to make sure there was no mention of peanuts or any other nuts and (2) that we could disregard advisory or precautionary labelling (“May contain nut traces”, “Produced in a facility that also processes nuts” and so on).

I think the logic behind this advice is that:

  • The risk of a food labelled “may contain” containing enough peanut to trigger an allergic reaction is extremely slim.
  • As a side point, there is a concern that if we cut out “may contain” foods too, D could have a restricted diet.

Furthermore, given “may contain” labelling is completely voluntary (and will continue to be so when the new labelling regulations come into force in December 2014), is a product labelled “may contain nuts” any more dangerous than another product where the manufacturer knows there is a cross contamination risk, but chooses not to flag this on the label?

Cross contamination: assessing the risk

In the UK and EU, the ingredients list on prepacked food must be accurate. If even the tiniest amount of peanut (for example) has been intentionally added to the recipe, then “peanut” should be listed in the ingredients.

“May contain” labels are intended to alert consumers to the possibility of accidental cross contamination during the production process. So, for example, if your supposedly nut free breakfast cereal is produced in the same factory as nutty granola, the manufacturer might put “may contain nuts” (or an equivalent warning) on your cereal packet.

A few points worth making about “may contain” labels:

  • They are voluntary. If there is no warning wording, you cannot safely assume there is no cross contamination risk.
  • If the manufacturer chooses to use a “may contain” label, you have no way of knowing whether the risk is genuine or whether the manufacturer is just trying to cover its back.
  • You cannot gauge the level of risk from how the warning is phrased. For example, a product labelled “Not suitable for nut allergy sufferers” is not necessarily more high risk than one labelled “May contain nut traces” (and vice versa).

An opposing view from the Anaphylaxis Campaign, Ireland and the University of Nebraska

In the early months following diagnosis, we followed our doctors’ advice and focused only on the ingredients list. However, as I touched on in my recent post on Oreo, our attitude to “may contains” has evolved. When I started Nutmums.com in January 2013 (and particularly when I joined Twitter), I began reading a lot more about food allergies and allergen labelling law. I realised that many allergic people avoid products with advisory labelling. In fact, it seemed as if we were in the minority for not having sworn off “may contain” products.

I then discovered that the Anaphylaxis Campaign advises people to “heed the warnings every time” and that ignoring the warnings is “risky behaviour”. Two recent studies have further underlined this approach:

  • An Irish study tested 38 food products with peanut or nut “may contain” warnings. Peanut was detected in 5.3% (2 of 38) of the products tested. The study concluded “Although it appears that the majority of food products bearing advisory nut statements are in fact free of peanut contamination, advice to peanut allergy sufferers to avoid said foods should continue”.
  • Similarly a study by the University of Nebraska discovered detectable levels of peanut in 8.6% of foods labelled “may contain peanut” (or similar advisory wording). This study concluded that “Peanut-allergic individuals should be advised to avoid such products regardless of the wording of the advisory statement”.

In the UK, the Food Standards Agency have:

“been working to reduce the unnecessary use of ‘may contain’ labelling and to provide clear advice to the public on why these labelling terms are used and what they mean.”

The FSA hopes to publish the outcome of this work shortly.

Peanuts, murderers and lightning bolts

I read recently in the Metro that “People with a food allergy are more likely to be murdered than to die from their condition”. A comforting statistic? Not really. As to my mind, psychopaths can come after anyone, but my son’s one of those with a target on his back where peanuts are concerned.

Similarly for the adage that you’re more likely to be struck by lightning than die from a food allergy. If you’ve got a peanut allergic child with a prior history of severe anaphylaxis, it kind of feels like your kid is the one with the 50 ft conducting rod pointing at them.

It’s also not just about death (although, it goes without saying, that’s the main overriding worry). I don’t want my son to have ANY kind of allergic reaction, if I can possibly help it. I don’t want him to be on life support again, even if within a week he is back home building Lego and watching CBeebies as if nothing has happened. I don’t even want him to spend one night on the children’s ward for observation after a mild reaction, IF I can help it.

The statistics about murderers and lightning bolts might offer me some perspective on his allergies generally. However, they’re not something that would influence my decision on may contains. Avoiding a food labelled “may contain nuts” is something I can do. It’s an element of this whole food allergy business that I can control. There may only be a slim chance that a food labelled “may contain nuts” actually contains enough peanut to trigger a reaction. It may therefore follow that the chance of a life threatening reaction from a “may contain” product is incredibly small. But it’s not outside the realms of possibility and it’s a risk that’s easy to avoid.

Why we avoid products labelled “may contain nuts”

In summary:

  • If a manufacturer has decided to state that its product “may contain nuts”, I take that statement at face value and avoid the product.
  • Even if the chance of a reaction to a may contain product is extremely unlikely, that chance still exists.
  • We’re only dealing with a nut allergy, so, whilst it may mean more time spent searching for nut free options, I don’t feel D has a restricted diet by avoiding products labelled “may contain nuts”.

So, for now, for us, any product with a “may contain” label doesn’t even make it as far as the shopping trolley. If there is no warning wording, I then have to resort to checking the manufacturer’s website or emailing their customer services team.

For me it comes down to this. Would I forgive myself if I knowingly gave my son a product labelled “may contain nuts” and he had an allergic reaction? No. Would it be any comfort whatsoever, if a doctor then told me what had happened was “incredibly rare”? Precisely.

So, until the law on advisory labelling is improved, we will continue to avoid “may contains”.

Sources

View More

The prospect of school is looming.  I cannot ignore it any longer. Next September, D moves out of the protective bubble of nursery and into the big wide world of primary school. The application forms need to be in by mid January.

I’m guessing that (given a choice) parents might ordinarily choose a school on the basis of things like proximity to their home, or the OFSTED rating. And those factors are important to me too. However, the deciding vote will be in favour of the school that seems the most clued up about protecting a child with food allergies. So I have embarked on a tour of our local primary schools, both to have a look around and to broach the subject of D’s peanut allergy with the staff.

Once the appointments were in the diary, I realised that I needed to:

  • Compile a list of questions to ask the school. However, in order to do this, I first needed to know what measures UK schools typically put in place for allergic children.
  • Think about the things I could be doing behind the scenes, both before and after term starts, to make things safer for D (and therefore less stressful for me).

Although I’m still feeling like a novice on the schools front, I thought I would share some of:

  • The excellent advice I’ve been given by Nutmums.com readers who have school age children.
  • The handy tips I picked up at at a recent Manchester Allergy Support Group meeting on “Food allergy in schools”.
  • Links to the other useful resources I’ve found on this topic.

If you’ve already been through starting school with a nut allergy, and have any advice or tactics that may help me and other readers with pre-school children, do post a comment below – I would love to hear from you!

What measures do primary schools put in place for an allergic child?

It seems the starting point is the EAACI position paper from 2010: The management of the allergic child at school. This sets out the following “rights of the allergic child”:

“1. To be educated in a safe and healthy environment, with as few provoking allergens and irritants as possible and to breathe clean air in schools.

2. Not to be stigmatized as a result of their condition.

3. To be able to participate in all educational and recreational school activities to the same extent as their peers.

4. To have access to medication and other measures to relieve symptoms.

5. To have access to trained personnel who are able to treat acute reactions.

6. To have their education adapted to their condition if necessary (e.g. physical education).”

The position paper talks about a “co-operative partnership” between doctors, community and school nurses, parents, the school and the child. It sets out action points for the various parties. So, as parents, for example, we need to:

  • Tell the school about D’s allergies and provide the school with a written allergy management plan (obtained from the hospital).
  • Provide the school with a set of D’s emergency medication (and keep track of the expiry dates, so I can provide replacement adrenaline auto-injectors when needed).

In turn, the school’s responsibilities include:

  • Adopting the written emergency treatment plan.
  • Making sure all staff (1) can identify children with allergies and (2) are aware of the location of the children’s (individually labelled) emergency medicine kits.
  • Ensuring all staff are trained in allergen avoidance, recognition and treatment of anaphylaxis (with annual refresher training).

For more information on allergy management plans, see Anaphylaxis Campaign, Setting up a management plan, which links to plan templates on the BSACI website.

Will the school be “nut free”?

Selfishly: I would like D’s school to be “nut free”.

Rationally: I know that children have allergies to all sorts of foods, and I can see how making a school milk, egg, soya, wheat etc etc free would be unworkable.

There is also the argument that, by making a school nut free, you create a false sense of security and don’t prepare the nut allergic child for life in the outside world. Although I can see the sense in this, I think there’s something to be said for erring on the side of over-protection for a young child of four or five, compared to a child of, say, ten, who has a completely different level of awareness.

Of the three schools I have visited so far, two have been “nut free”, to the point where they ask parents not to include peanut- or nut-containing foods in packed lunches. The third school said they hadn’t needed to impose a “nut ban”, as it hadn’t yet been an issue: their pupils hadn’t yet brought in peanut butter sandwiches.

Is there a school nurse?

From talking to our local primary schools, it seems that in our area (East Cheshire) each school nurse works for several schools. So, the school nurse isn’t based full time at any one particular school. However, of the three schools I have visited, all aim to make sure that ALL staff (so teachers, teaching assistants, administrative staff, dinner ladies etc) know which children have allergies (and to what allergens), how to recognise an allergic reaction, where the child’s medication is kept and how to administer an adrenaline auto-injector. Music to my ears, to say the least.

What’s safer: school dinners or packed lunches?

In September, the Government announced that all infant school pupils in England will get free school lunches from September 2014 (see the BBC report and the Anaphylaxis Campaign’s response). My first thought was “we’ll stick to packed lunches, thanks all the same”. Then I started wondering: would it be safer for me to put my trust in the school dinner provider, and have D sitting amongst children eating the same food, or send him in with a packed lunch that I knew was safe, but then live in fear of cross-contamination from the child next to him eating a peanut butter sandwich or nutty granola bar?

My fears on this have been allayed somewhat after talking to the various schools. All three had ladies who prepared the school dinners on site, and one said that I could come into school, before D started, to talk to their cook about D’s dietary requirements. The schools also had a “no swaps” rule and had extra staff on hand at lunchtimes to police this.

When I attended the Manchester Allergy Support Group back in October, Judy Stafford (from the Royal Manchester Children’s Hospital) gave an extremely informative talk on “Food allergy in school”. On the school dinners vs packed lunch debate, she suggested thinking about who it was who wanted packed lunches. Was this mum, thinking it was safer? Or actually something the child wanted (maybe for reasons unrelated to allergies)? Could mum’s fears be overcome, if the nut allergic child ate at a “nut free table”? Or, might it even be sufficient for the nut allergic child to have a seat at the end of a table, where it would be easier for the staff to keep an eye out for spills or attempted swaps?

The schools I have visited do not have separate nut free tables. At one of the schools, children could sit wherever they pleased: there was no segregation of those having school dinners and those with packed lunches. I think I will talk to the cook at whichever school we end up, and make a call on this nearer to the time.

Ideas for working with the school

A recurrent theme running through both the position paper and the support group talk is the need to work WITH the school. One Nutmums.com reader told me that she worked with her son’s school to put together a risk assessment, which set out all the steps that his school would take to minimise the risk of an allergic reaction. Her son was diagnosed as peanut and tree nut allergic during the summer holidays before starting Year 4 (ages 8-9). The measures the school put in place (and which I will be using as a guide!) included:

  • All staff trained on use of Jext pens.
  • Son to take in packed lunch and own snack for playtime.
  • Lunchtime staff to be able to identify son, and also ensure his table is wiped down before he sits down to eat at lunchtime (he was taken into the kitchen on the first day of school to say hello to all the dinner ladies!).
  • Son’s emergency allergy kit to be placed in office, clearly labelled as his and with his photograph on it (I put together a tupperware containing his Jexts, antihistamines, ‘blue’ inhaler and clear instructions for use plus lots of copies).
  • Procedure established for staff to go and get the allergy kit immediately in case of emergency.
  • Emergency plan laminated with son’s photograph on it and placed in an obvious place in every classroom and the school kitchen and staffroom (my youngest son told me he has a peep at his big brother’s photo every morning in his classroom before the register is taken!). The emergency plan states … what my son is allergic to, where his emergency kit is kept, how to recognise a reaction and what to do if a reaction occurs. It also sets out a vast array of emergency contact numbers from myself, my husband, grandparents and local auntie and uncle!
  • School implementing a “no nut” policy so parents are advised via school newsletter not to include nuts, nut products, peanut butter, nutella etc etc in packed lunches and snacks – this is a massive relief, and has been probably the main factor in allowing me to relax during the day. Parents are to be re-reminded about this at the start of every new term.
  • We are to send in bag of allergy friendly snacks so that when other children are handing out treats on birthdays etc, there’s a stash of goodies that my son can have so he doesn’t feel left out.
  • We are to be informed in advance of party days/class treats so can liaise with teacher to see what food is going to be provided and send in suitable alternatives if needs be.
  • I have to be a ‘parent helper’ on school trips wherever possible.
  • Children are also encouraged to wash hands before and after eating.

One other suggestion (from a teacher who herself has allergies), is to provide the teacher with a list of acceptable foods. The teacher would need to check the food label each time, but a “safe list” would give them a starting point if they wanted to do treats.

Feeling daunted? You betcha…

At the moment, if we take D out with his scooter, we have to walk on the outer edge of the pavement and steer him back towards the hedge when he starts veering towards the road. The speed is there, the control isn’t, and neither is there any proper conception of the danger of the oncoming traffic. When I look at older children zipping along on scooters by themselves, it’s difficult to picture D doing the same. I know it will happen. It just seems a long way off.

In the same way, I struggle to picture D saying “no thank you” to a child in a playground who offers him a chocolate biscuit. D knows that nuts will make him poorly (“because I hab allergy”), that we need to check ingredients labels (“check label! no nuts!”) and that he has special medicine if he is ever unwell. But is he at the stage where he would say “no” to a food? I don’t think we’re there yet. But we need to be at that point, in ten months time.

What can we do at home to prepare and plan ahead?

Two key rules…

A reader told me that every morning, she makes her son repeat the following two key rules:

“1 – don’t eat anything that someone else gives him

2 – tell the teacher if he feels any sign of a reaction at all”

I think this is a tactic I will be copying wholesale!

Another suggestion is to build up your child’s allergy awareness generally, for example by talking to your child about checking food labels when supermarket shopping, or by explaining what’s happening at a restaurant (when you are reading a menu and checking the position on allergens with the staff).

Anticipating risk areas

What things at school pose a particular risk for the nut allergic child? And, crucially, what can you do to prepare for them and make them safer?

A key piece of advice which stuck in my mind following Judy Stafford’s support group talk was to always ask “what are the options?”, always looking at the situation from the perspective of what your child CAN do (inclusion) rather than what they CAN’T (exclusion). So, say there is a school party coming up where food is going to be served: what are your options? Well, firstly, you could talk to the school about the party food, as it may be that everything is already nut free. If not, you could:

  • Keep your child home that day, so they miss the party altogether.
  • Provide a packed lunch for your child to eat, whilst all the other children eat party food.
  • Find out what party food will be served, and provide a packed lunch with nut free versions of those foods (as far as possible).
  • Offer to do the shopping for the party, so that all of the food is safe for your child and they can dig in and pile food onto their plate like everyone else.

Other common risk areas for food allergic children at school include:

Birthdays. The birthday boy or girl might bring in treats to share with the class. Events such as Halloween and Easter pose a similar risk. One nut mum I know has instilled into her child that Haribos are safe, but anything else is off limits. The position paper suggests that “Food-allergic children may benefit from an individually labelled box, containing allergen-free ‘treat’ foods for class celebrations or rewards”, so it’s worth talking to the school about a treats box and to agree that you will be given a heads up on any impending food-related events.

The home corner. It seems common for infants school classes to have a “home corner”, where children can play house or play shop. Empty food packets are often used as props. One nut mum I know has been very pleased with the comprehensive way in which her sons’ school and nursery have dealt with their allergies, however the school has recently taken to using empty boxes of Crunchy Nut cornflakes as home corner props. Fortunately, her son (aged 5) can recognise the packaging and knows not to play with that particular box. However, I guess if your child was less aware, it would be a case of talking to the teacher and maybe offering to provide alternative props.

Water fountains. Rather than use the water fountain, could your child have bottled water on hand instead?

Sporting events and school trips. For any events where the child is going to be taken out of school (for example, for swimming lessons, to play football against another school, on a school trip), parents need to talk to the teacher in charge beforehand, to check:

  • On arrangements for food.
  • That both your child’s emergency meds and a person trained to administer them will be on hand.

(see the Anaphylaxis Campaign’s advice on Out-of-school activities).

At the support group talk, Judy Stafford mentioned that you could consider volunteering to be a parent helper, however you need to bear in mind your child’s age, as this can be socially awkward for the child as they get older. Judy also suggested that, if you know there is a residential trip coming up in year 6, you could do some groundwork beforehand, for example:

  • Going on school day trips.
  • Have sleepovers at grandparents’ or a friend’s house.

At the support group talk, it was suggested that someone could also test your child by offering a peanut-containing snack. (Although that sounds a good idea, when D gets a bit older I think a potential flaw might be if he then holds a grudge against the “tester” as having been trying to poison him!)

Christmas party. See above – you might, for example, send in safe food for your child or get involved in organising the food for everyone.

Cookery lessons. Home economics classes (or whatever they are called now!) sound like a potential food allergy minefield. However, it seems that a food allergic child need not necessarily be excluded from cookery classes or clubs, but there will need to be some discussion with the teacher beforehand as to how things can be made safe. Recipes could be adapted to be nut free. The child with allergies could use their own designated work space and utensils, for example with baking tins which can be easily differentiated (for example, a different shape or colour).

My list of questions for the initial appointment

It has been a relief that all of the schools I have visited so far have had experience of allergic children and already had systems in place to care for pupils with allergies. However, I still have more to visit, and, in case they are less forthcoming, these are the questions I will ask:

  • Do you have experience of other children with allergies?
  • If D joins your school, will we put together an action plan? What would you like me to provide?
  • Can all staff identify those children with allergies? (Do you have their photos on a wall?) Where are their emergency medicines kept?
  • Do you have a school nurse? Do all staff know how to use an EpiPen / Jext pen?
  • Is the school “nut free”?
  • What are the arrangements at lunchtime? Is there a nut free table? Are swaps forbidden?
  • As regards school dinners, would it be possible to come in to talk to the cook about D’s dietary requirements?

Further information

 

View More

My 17-month-old daughter is about to start nursery and her allergic status has come under the spotlight in the last week. More specifically: what would happen if she had her first allergic reaction whilst at nursery?

She will be going to the same nursery as her big brother. They have always inspired confidence in the way they have handled his peanut allergy. However, when completing my daughter’s paperwork, the position on allergies was not so clear cut:

  • Does she have any allergies? Well, no, nothing has been diagnosed as yet.
  • Any special dietary requirements? No nuts please, at least until she has been allergy tested.
  • Any medication requirements? No. Well, not as yet…

Allergy testing siblings

I’ve blogged in the past about the NHS policy on allergy testing siblings. Siblings of food allergic children have a higher peanut allergy risk. Dr Andrew Clark (in his 2010 Q&A piece for Mumsnet), said that siblings of peanut allergic children have a 7% chance of developing nut allergy, compared to a 1-2% background population rate.

Our doctors’ advice has varied as to whether my daughter will be offered allergy tests for nuts. My understanding is that allergy tests are not routinely offered on the NHS, where the sibling has not shown any allergy symptoms. However, given my son’s initial reaction was severe, some doctors have indicated that the hospital would be prepared to test my daughter too, for our peace of mind. I understand she could be tested now (at 17 months), however the hospital would prefer to wait “until she is a little older, say 3 or 4”. I’m not entirely sure what the logic is for waiting and this is something I will check with our doctors.

How would nursery handle a child’s first allergic reaction?

So far, my daughter has shown no signs of eczema, asthma or food allergies, and obviously I have my fingers crossed that long may that continue. However, my comments on the nursery form that she should not have any nuts lead onto a discussion with one of the nursery supervisors as to whether this was due to an allergy or “parental preference”. In her case, at the moment, it is “parental preference”. I explained about her increased peanut allergy risk and that she will be tested at “around 3 or 4”. The nursery are going to control her food in the same way as they do for my son, with the chef checking that her food is nut free (and this being double checked by a member of the management team). So far, so good.

We then talked about medications. Our allergy doctor has confirmed to me in the past that, if my daughter ever suffered anaphylaxis, we should use my son’s EpiPen. (I suspect the doctor might have thought it was a slightly ludicrous question for me to even ask – but I wasn’t sure whether she might have needed a smaller dose of adrenaline. However, it turned out the EpiPen Jr would be suitable. For more information, see the EpiPen website).

During the discussion with the nursery supervisor, it dawned on me that, even with my express permission, the nursery staff could not do the same thing. If my daughter had a severe allergic reaction, they would need to call an ambulance and wait for the paramedics to arrive, to administer the dose of adrenaline. Immediately after dialing 999, they would telephone us and we would also tear down to the nursery with my son’s emergency medication. We live only a couple of minutes away from the nursery and may well arrive before the ambulance.

However, given that, with anaphylaxis, every second counts, this arrangement has left me feeling extremely unnerved. I now want my daughter to be tested for peanut allergy ASAP, so she can be prescribed her own EpiPen, if the results are positive.

Unassigned EpiPens in UK nurseries and schools?

In recent weeks, there have been several news reports from the US about schools holding “stock” or “undesignated” epinephrine (adrenaline) auto-injectors. According to a New York Times article published today, “Amarria’s Law” (made following the death of a young girl, Amarria Johnson, from anaphylaxis) requires:

“Virginia schools to stock epinephrine and allows school authorities to give it to children without a prescription, and indemnifies those who administer it in a life-threatening situation”

The NYT article states that the School Access to Emergency Epinephrine Act is due to go before the US Senate this autumn. If passed, this will allow similar legislation to be enacted across the USA. American schools can also acquire free undesignated EpiPens through Mylan Specialty LP’s EpiPen4Schools program.

Isn’t it time we had similar measures in the UK?

Allergy UK report that 50% of children in the UK have allergies, however they advise that there is “no test which can predict risk of anaphylaxis”.

Around one in 50 UK children has an allergy to peanuts. According to Dr. Carla Davis (quoted in an article on ABC13):

“Twenty to 25 percent of children [in the US] with peanut or nut allergies have their first reaction at school before anyone knows that they have a food allergy. So it’s very important to have epinephrine in the school to treat those children, and it has to be an unassigned pen.”

So, it might follow that something like 1 in 200 UK children will discover their peanut or tree nut allergy when they have a reaction at school. It would be very interesting to know how many UK children (who at that point have not been diagnosed as having an allergy) have their first anaphylactic reaction at school and have to wait for the paramedics to arrive with the adrenaline.

Wouldn’t it be reassuring if nurseries and schools (and restaurants, shopping centres, railway stations etc) held adrenaline auto-injectors in the same way as some public places now have defibrillators? And if ALL nursery and school staff were trained in how to recognise the signs of anaphylaxis and administer an EpiPen, if need be? Is that a realistic goal for the UK? What do you think?

Sources / further reading

View More

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 (December 2013)

For more information, see my subsequent posts:

Further information / sources

View More

When my son was initially diagnosed as allergic to peanuts, the hospital doctors advised us:

  • To check the ingredients list on food packets and avoid anything containing peanuts and nuts.
  • That he could eat products that say “may contain traces of nuts”.

We were told that, in the UK and EU, the ingredients list on food packaging must be accurate. I remember asking why, in that case, food companies bothered with “may contain” wording? I was told “it’s just the lawyers”. Curious, I decided to look into the UK’s food allergen labelling laws, to find out:

  • What details food manufacturers must provide.
  • The point of “may contain” wording.
  • How the existing UK food allergen labelling laws are going to change in December 2014. Continue Reading