Mart v Assessment Services Inc

Employment Appeal Tribunal – May 2019 

The Employment Appeal Tribunal (EAT) has ruled that the side effects from the treatment of a visual impairment did not need to be considered when assessing the employee’s disability.

The Equality Act 2010 outlines that an individual will be disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Generally, an impairment will still be treated as having an adverse effect if measures are taken to correct it, as long as the impairment would still have been likely to have this effect without the measures.

Despite this, paragraph 5 of schedule 1 of the Act specifically provides that individuals who are visually impaired will not be classed as disabled if their condition can be corrected by spectacles, contact lenses or other prescribed ways.

FACTS

The employee in this case suffered from diplopia, which is commonly referred to as ‘double vision’ and causes individuals to see two images of a single object. She therefore used a contact lens that counteracted the symptoms of diplopia but visibly blacked out her eye and restricted her peripheral vision.  Due to this, she brought a claim for discrimination on the grounds of disability, arguing that the side effects of the contact lens meant that her diplopia was not corrected and that she was therefore still disabled.

It should be noted that she did not plead any of the other conditions that she suffered from as a result of use of the lens, which were facial disfigurement, anxiety and depression.

ET

The employment tribunal (ET) dismissed her claim, finding that as her diplopia could be corrected by the use of a contact lens, it did not amount to a disability. The employee appealed against this decision to the Employment Appeal Tribunal, on the grounds that a narrow view of her case had been taken by the judge.

EAT

The EAT also dismissed her claim, agreeing with the reasoning of the ET.

The EAT found that the ET had not been required to consider whether the disfigurement the contact lens caused, or the consequential anxiety and depression, were disabilities. This was because the employee had not pleaded these conditions as disabilities and, had she later wished to, she would have had to amend her claim. Instead, the ET only needed to consider if the diplopia itself was a disability on the basis that it had not been corrected by use of the lens.

The EAT went on to explain that whether an impairment was ‘correctable’ for the purposes of the Equality Act would always be decided on a ‘case by case’ basis. In this situation, it needed to be considered whether the impairment was resolved and if it was legitimate to take into account the adverse consequences of resolving it. The EAT ultimately concluded that the lens had corrected the diplopia, and there was no evidence submitted that the side effects made using it unacceptable or unworkable.

Although the EAT did accept that the employee suffered a loss of peripheral vision to some extent, they could not find this was so significant that the lens was unable to provide a solution to the diplopia.

Note for employers

As seen in this case, the legal position on needing glasses or contact lenses to correct a visual impairment may not be as clear cut as previously believed. Organisations should take care to avoid assuming that any correctable visual condition will automatically not be a disability. Tribunals may conclude that the impairment has not been corrected if the method used to correct it is the cause of significant side effects. In this situation, it would still be treated as a disability.

It is interesting to note that, whilst the EAT would not consider any further disability claim on the ground of facial disfigurement as this was not the claim originally made by the employee, they did state that had the claim been based on this, the role of the lens would have been considered in this context. This could have resulted in the conclusion that the employee was disabled.  Organisations should remember that an impairment consisting of severe disfigurement, such as scars, birthmarks or diseases of the skin, can be classed as a disability for the purposes of the Equality Act.

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