Chief Constable of Lothian and Borders Police v Cumming
To satisfy the provisions of the 1995 Disability Discrimination Act, claimants have to show, among other things, that their impairment has a substantial adverse effect on their normal day to day activities. In Chief Constable of Lothian and Borders Police v Cumming, the Employment Appeal Tribunal held that progression in professional life could not constitute a normal day to day activity.
Basic facts
Ms Cumming was already working as an operations co-ordinator (a civilian post) for the police when, in November 2006, she successfully applied to also become a Special Constable.
Before being appointed, she underwent a medical examination which identified that she had a problem with her left eye involving a “mild left sided amblyopia”. This meant she could not look straight up with her left eye and could only look over her left shoulder by twisting her head right round and using her right eye. When doing any “close reading work” she needed a break every 20 minutes to allow her to refocus.
At the end of 2007 she applied to become a regular constable but was rejected because her eyesight restrictions meant she could not satisfy the requirements of the statutory test set down for regular police officers.
She claimed disability discrimination. The police force argued that a refusal to allow her to join the regular force did not constitute an “adverse effect” on her day to day life; and even if there were adverse effects, that they were not substantial.
Relevant law
Section 1 of the DDA says that a person has a disability if they “have a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities”.
Tribunal decision
Relying on the case of Paterson v Commissioner of Police of the Metropolis (see weekly LELR 39), the tribunal decided that participation in professional life was a normal day to day activity. The refusal of the police to allow Ms Cumming to move on in her career and join the regular force therefore amounted to a substantial adverse effect.
In the alternative, it found that the effects of her impairments were substantial and if she did not have them, she would not have been refused entry to the force.
EAT decision
The EAT, however, disagreed, saying that the tribunal was wrong to categorise Ms Cumming’s rejection from the force as an adverse effect under the DDA and said that it had misunderstood Paterson.
Following the decision of the European Court of Justice in Chacon Navas v Eurest Colectividades, the EAT in Paterson had held that undergoing assessments and examinations could be normal day-to-day activities.
But the EAT in this case said that these decisions did not support Ms Cumming’s argument that progression in her professional life was, in and of itself, a normal day to day activity under the DDA.
Instead, it said that “making an application to enter a profession or, indeed, for any job does not imply any particular physical activity. Further, the potential employer's refusal to progress the application is not a physical effect. If it was then a person who themselves suffered no adverse effects from a subsisting physical impairment would be rendered disabled if a potential employer rejected their application on the ground of that impairment.” This would not fall within the intention of the legislation.
The EAT also said that although Ms Cumming’s impairment gave rise to some adverse effects, they were limited and minor in character. The tribunal’s decision that she suffered from an impairment which had a substantial adverse effect on her ability to carry out normal day to day activities was perverse.
It therefore allowed the appeal and ruled that Ms Cumming was not a disabled person within section 1 of the DDA.