The Employment Appeal Tribunal recently decided in Mart v Assessment Services Inc that side effects from treatment of a visual impairment should not be considered when assessing Mrs Mart’s disability. This case looks into what is meant by “correctable” within Schedule 1 paragraph 5(3) of the Equality Act 2010, which had not previously been explored.
Facts of the case
Mrs Mart was given special contact lenses given her “diplopia” (double vision). These special lenses had blacked out sections, which aimed to correct the claimant’s double vision but meant that her eyes may look different to others with clear lenses.
The claimant brought an indirect discrimination claim for the side effects of her treatment for her double vision. She had chosen to focus her case on her double vision rather than her “facial disfigurement” or anxiety and depression. Rather than correcting her condition, Mrs Mart claimed that her contact lenses actually had disfiguring side effects and that, as it affected her peripheral vision, it had not corrected her double vision.
What is the normal position on visual impairments and treatment?
When looking at whether a condition meets the definition of a disability under the Equality Act 2010, a tribunal must normally ignore the positive effects of the treatment to correct the impairment and look at whether the impairment has a substantial and long term adverse effect on the individual’s ability to carry out their normal day to day activities.
However, Schedule 1 paragraph 5(3) provides an exclusion from bringing a disability claim for vision impairments that can be corrected by contact lenses or glasses.
What was the decision?
The Employment Tribunal held that, because her double vision could be corrected with contact lenses, this would not amount to a disability. The claimant appealed this decision on grounds that the judge had taken too narrow a view of her side effects.
Lord Summers, in the Employment Appeal Tribunal (EAT), agreed with the Employment Tribunal and held that the claimant could not rely on the cosmetic impact (even if linked to her anxiety and depression) of the lenses or the effect that they had on her peripheral vision given that she had not included these wider claims as part of her pleadings originally. She had claimed indirect discrimination based on her double vision only.
When looking at the definition for “correctable” in Schedule 1 paragraph 5(3) of the Equality Act 2010, the EAT took a practical approach. While the Equality Act 2010 simply states that the visual impairment condition would be excluded if it is correctable by lenses or glasses, it would not be appropriate to ignore issues such as eye infections or discomfort. Lord Summers held that whether the treatment has the effect of “correcting” the condition is to be judged on a case by case basis.
In this case, Lord Summers concluded that the lenses had corrected Mrs Mart’s condition and, therefore, the exclusion applied so Mrs Mart’s claims failed. There was no evidence before the tribunal to suggest that the lenses were unacceptable or unworkable.
What does this mean?
Interestingly, Lord Summers’ final comments stated that had she chosen to present her claim on the basis of facial disfigurement then the impact of the lenses could have been considered as part of the claim.
More generally, the visual impairment exception is not as clear cut as first thought. The representatives for Assessment Services Inc had argued that it was inappropriate to consider anything more than whether the visual impairment had been corrected. However, Lord Summers’ comments suggest that a tribunal will consider all the facts, which could include whether treatment causes unacceptable adverse consequences such as eye discomfort or infections in future.
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