Side effects and definition of disability

The EAT in Mart v Assessment Services Inc. has considered the definition of disability in relation to poor vision, and specifically whether side effects from treatment to correct an impairment should be considered when assessing disability.

The Claimant brought a claim for indirect discrimination, based on the claim that the Respondent had discriminated against her on the grounds of her disability of diplopia (double vision). The Claimant did suffer from other disabilities, including facial disfigurement, anxiety and depression, however it was concluded in preliminary hearings that the claim was not based on these other conditions but instead solely on her diplopia.

The Claimant’s condition could be corrected by the use of prescribed contact lenses, which her consultant confirmed would “resolve her symptoms”, meaning her disability could be corrected. The Employment Tribunal (ET) therefore found that she was not disabled, as her condition could be corrected. The Claimant appealed.

The Claimant argued that too narrow a view was being taken of her disability. While it was accepted that the contact lenses corrected the double vision issue, in fact they had other side effects including visibly blackening out her eye (leading to facial disfigurement) and interfering with her peripheral vision meaning that in fact they did not correct her disability.

The question for the Employment Appeal Tribunal (EAT) to consider was limited to whether the diplopia itself was a disability. The Equality Act schedule 1, paragraphs 5(1) and 5(3) exclude visual impairments that are “correctable by spectacles or contact lenses or in such other ways as may be prescribed”. As it was confirmed that the contact lenses did correct the double vision, the Claimant was not permitted to rely on any consequential cosmetic issues or anxiety and depression as a side effect of the contact lenses.

A further consideration for the EAT was the meaning of “correctable” and specifically, whether it is legitimate to take into account any side effect or cost of such corrections. The term “correctable” within the Equality Act is not subject to any proviso that the correction is only acceptable provided it is reasonable for the person to wear the contact lenses or spectacles. In the strictest sense therefore, any side effects are not relevant for considering whether a visual impairment can be corrected.

However, this does not mean that no account should be taken of the practical impairments caused by any corrective treatment. The EAT decided that it was a practical issue as to whether an impairment is “correctable” and consideration should be made of whether resolution brought with it any “unacceptable adverse consequences”. This would include, for example, discomfort, dryness of the eyes and infection. This is a matter to be judged on a case by case basis.

In this case, there was no dispute that the contact lenses corrected the double vision and equally, there was no indication that the side effects of disfigurement and restricted peripheral vision were so significant as to make the use of the lenses unacceptable as a solution to the diplopia.

The EAT therefore agreed with the ET and dismissed the appeal, holding that the visual impairment did not constitute a disability as it could be corrected by lenses, and that the side effects in this case should not be taken into consideration when determining whether a disability exists.

Following this decision, it will be important for employers to understand any visual impairments of employees that may constitute a disability, and whether any corrective treatment are available that would mean the impairment does not meet he definition of disability. Each case will of course be different and dependent on the facts.