The Employment Appeal Tribunal (EAT) has held in Mart v Assessment Services Inc that, when deciding if a sight disability is “correctable”, tribunals should not just take into account whether the impairment was resolved by the correction, such as wearing a lens, but also whether the resolution resulted in unacceptable adverse consequences.
Ms Mart brought a claim of indirect disability discrimination on the basis that she suffered from double vision or diplopia. Although she suffered from other disabilities, including facial disfigurement, anxiety and depression, she expressly based her claim on diplopia.
Paragraph 5(1) of Schedule 1 of the Equality Act 2010 states that “An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if—
(a) measures are being taken to treat or correct it, and
(b) but for that, it would be likely to have that effect.
However, paragraph 5(3) states that the above does not apply to the impairment of a person’s sight if it is “correctable” by spectacles or contact lenses or “in such other ways as may be prescribed”.
The employment judge dismissed the claim on the basis that the medical evidence showed that the lens she wore in her left eye had resolved her symptoms of double vision. Her claim was therefore excluded by paragraph 5(3) of Schedule 1.
Ms Mart appealed on the basis that the employment judge had taken an excessively narrow view of her claim. While she accepted that diplopia was her key disability, she argued that the contact lens was disfiguring in the sense that it was cosmetically unattractive by visibly blacking out that eye. She also argued that a consequence of wearing the lens was that her peripheral vision was restricted and that the lens had not therefore corrected her diplopia.
Holding that the key issue was whether the judge had correctly interpreted the legislation, the EAT noted that medical evidence confirmed that the lens in her left eye had indeed resolved the problem of double vision. Although it might have had “consequential cosmetic consequences” as well as anxiety and depression, the EAT held that she could not rely on those consequences as she had expressly limited her claim to diplopia. The judge was, therefore, only required to deal with the question of whether the diplopia – as opposed to disfigurement - was a disability.
As to the issue of the meaning of the word “correctable” in the legislation, the question was whether tribunals should take account of any adverse consequences of the “correction”. The EAT held that this was a practical matter which should be considered by taking into account whether the impairment (such as diplopia) was resolved by use of the lens but also whether the resolution brought with it unacceptable adverse consequences such as eye discomfort or infections. The issue as to whether the impairment was "correctable" was therefore a matter to be judged on a case by case basis having due regard to the factual context and not just whether the sight impairment was resolved by the use of spectacles or lenses.
In this case, however, there was no dispute that the lens corrected the problem. Although there may have been some loss of peripheral vision, Ms Mart had not provided any evidence to that effect. Nor was there anything to suggest that her anxiety and depression were connected to the use of the lens or that she had sought to present such a claim to the tribunal.
It therefore rejected her appeal.