Clouded vision

Commissioner of Police of the Metropolis v Virdi

Under the DDA 1995, a person has a disability “if he has 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".

In Commissioner of Police of the Metropolis v Virdi, the EAT said that tribunals must not ignore a disabled person’s “coping strategies” when deciding whether their disability has a “substantial” adverse effect on their day to day activities.

Basic facts

Sergeant Virdi, a serving police officer, started to experience problems with his left eye in 2000. By 2004, it was estimated that the loss in that eye was 40 per cent, with an overall percentage loss of 20 per cent. He complained that he had difficulty reading for more than 30 minutes at a time and could not use a computer for more than a few minutes.

He brought a complaint of disability discrimination, alleging that his employer had failed to make proper adjustments when he took his promotion examinations. His employer said he was not disabled because his impairment could not be described as “substantial”.

Guidance to the Act

The guidance accompanying the Act says that a “substantial” effect is one that is more than “minor” or “trivial”. The guidance also acknowledges that there are coping strategies that people can use to mitigate the adverse effects of the impairment.

Paragraph A7 states that if a person can modify their behaviour so that it no longer has a “substantial adverse effect”, then they cannot be said to meet the definition of a disabled person. Paragraph A8, however, says that if these coping strategies do not work in certain circumstances (such as someone with a stutter who is put under stress), then that has to be taken into account.

The guidance goes on to say that if someone’s eyesight can be corrected by glasses, the tribunal still has to consider what the person cannot do in relation to day to day activities compared to most other people in the same circumstances.

The tribunal decision

At a pre-hearing review, the chair said that in order to mitigate the adverse effects of his impairment, Sgt Virdi had adopted a number of coping strategies. 

For example, he would move his head when crossing the road or trying to recognise someone, and he would rest after reading for a while or when using a computer.

Relying on previous cases (Leonard v South Derbyshire Chamber of Commerce; Vicary v British Telecom PLC), the chair then went on to hold that she must not take these coping strategies into account when deciding whether or not Sgt Virdi’s disability had a substantial adverse effect. Instead she had to concentrate on what he could not do.

She therefore concluded that it was appropriate to describe his disability has having a “substantial” adverse effect on his day to day activities.

The police appealed on the basis that the chair had misdirected herself when she disregarded the coping strategies.

EAT decision

And the EAT agreed. It said that the chair had misread the two decisions and the guidance accompanying the Act. Neither of the cases, nor the guidance, indicated that coping strategies should be ignored altogether.

It therefore overturned the decision and remitted the case to the same tribunal to be reconsidered in the light of the guidance.

It also expressed doubts “as to whether taking such rests can properly be considered a coping strategy as such”, but accepted that the case had been argued on that basis.