When Is a Visual Impairment Not a Disability?

In a recent case, the Employment Appeal Tribunal (EAT) found that an employee's diplopia, which was correctable by contact lenses albeit with side effects, was not a disability for the purpose of the Equality Act 2010.
Relevant Law

Under the Equality Act 2010, impairments of a person's sight that are correctable by spectacles or contact lenses, or in such other ways as may be prescribed, will not be deemed to be a "disability" for the purposes of the act.

Mart v Assessment Services Inc

Ms Mart brought a claim against her employer, Assessment Services, for discrimination on the grounds of disability. She pleaded the disability of diplopia, which is an eye condition causing double vision. She did not plead any of the other conditions which she suffered from, which were facial disfigurement, anxiety and depression. She claimed that the contact lens prescribed to correct the diplopia had other side effects, including that it was disfiguring (in the sense that it looked different to a clear contact lens and was cosmetically unattractive) and that it restricted her peripheral vision.She argued that as a result the lens had not corrected her diplopia.

The Employment Tribunal (ET) held that as Ms Mart's double vision could be corrected with contact lenses, this would not amount to a disability. Ms Mart appealed to the EAT on the grounds that the judge had taken an excessively narrow view of her case.

The EAT's Decision

The EAT held that the ET had not been required to consider whether the cosmetic issue of disfigurement or the consequential anxiety and depression were disabilities, as they had not been pleaded as disabilities. It was therefore only required to deal with the question of whether diplopia was a disability. If Ms Mart had wanted to broaden her claim to plead these conditions as disabilities, she would have been required to amend her claim and provide relevant evidence.

The EAT found that whether an impairment is "correctable" is a practical issue to be judged on a case by case basis with regard to the full factual context, including whether the solution has any unacceptable adverse consequences. In particular, the judge noted that if the lens had caused eye discomfort or infections then this would be relevant to whether the impairment was resolved by the use of the lens. However in this case, there was no dispute that the lens corrected the diplopia and there was no evidence to suggest that the side effects made the solution unacceptable or unworkable.

Therefore, the diplopia was correctable and so was not a disability.

What Can You Learn from This Case?

Employers should note the EAT's comment that these matters are to be judged on a case by case basis, and so each case will turn on its own specific facts. Therefore employers should not assume in any case that a correctable condition will not be a disability for the purpose of the Equality Act 2010.

It is also worth noting the EAT's comments on the scope of Ms Mart's pleadings. Her disfigurement, anxiety and depression were not pleaded as disabilities, which meant that the ET had not been required to even consider the possibility that they might be. From an employee's point of view it will always be worth broadening the scope of pleadings to include all potential bases for a claim, as a judge is unlikely to countenance possible claims which have not been expressly raised.

For more information, please contact Gareth Edwards in our Employment Law team on 0117 314 5220 or gedwards@vwv.co.uk.