The definition of disability in the Equality Act 2010 has been covered a number of times in this blog, and comprises of four core requirements:
- That the individual has a impairment; and
- That this impairment affect their normal day to day activities; and
- That this effect is substantial (which means more than trivial); and
- That this has or is likely to be a long-term condition.
Sometimes a condition will be a disability even if all these requirements are not met, cancer is one example. However, conversely, some conditions even if they were to meet all four of the above requirements. These are set out in The Equality Act 2010 (Disability) Regulations 2010 and the conditions range from Hay Fever to a tendency to set fires. However, in Schedule 1 paragraph 5 Parliament effectively added another condition to the prohibited list.
The general position is that where a disability is treated and the treatment ‘cures’ the effect of the impairment then that is still considered a disability. So, for example, if a person had a mobility problem relating to their foot but, specialist footwear completely solved the problem then that would not stop the impairment being a disability under the Equality Act 2010, since the test is how the individual would be affected without the benefit of the treatment.
However, Paragraph 5(3) of Schedule 1 of the Equality Act introduces one exception:
Sub-paragraph (1) [that is the paragraph saying the effect of treatment or other measures should not be considered] does not apply—
(a) in relation to the impairment of a person’s sight, to the extent that the impairment is, in the person’s case, correctable by spectacles or contact lenses or in such other ways as may be prescribed;
So, if a person’s sight is ‘corrected’ by spectacles or contact lenses then they cannot be disabled even if the four criteria set out at the beginning of this post are met.
In Mart v Assessment Services Inc  the EAT considered the scope of this case. Given the preceding summary the outcome of the case will not be a surprise but the case also provides a good reminder of the importance of careful identification of relevant issues.
Mrs Mart had diplopia, commonly referred to as double vision. She also experienced other long term conditions that may or may not have been linked to the diplopia. The facts around the originating employment tribunal is unclear as the EAT do not provide much detail and I have been unable to locate the original tribunal’s decision. However, the original claim was a claim of indirect discrimination and the disability claimed was diplopia.
In treatment of the double vision the claimant was prescribed contact lenses that did indeed correct her double vision. However, according to the claimant they had a side affect of harming her peripheral vision and causing a facial disfigurement. When making the claim however the claim expressly excluded a claim relating to depression and facial disfigurement (which can be a disability under the 2010 Act).
On the fact the EAT made two conclusions – first because the issue related to side effects of the treatment insofar as they were consequential to the treatment but were separate impairments could not be included. While the claimant could have argued that there were separate disabilities operative in the case she expressly chose not to and should have sought an amendment to the claim to include them.
Second, because the double vision was indeed corrected by the contact lenses and since this was the impairment alleged to constitute a disability then applying paragraph 5(3)(a) the claimant’s sight problems were corrected by the treatment and so could not be a disability (this paragraph, it will be remembered, only applies to visual impairments that can be corrected by spectacles or contact lenses not to other disabilities).
The decision then is not in any way surprising but I think it is a useful by way of a reminder of the importance of ensuring all alleged disabilities are cited, not just in employment tribunal claims but also to employers. It is not not inconceivable that a more carefully pleaded case could well have had a different result. In this regard, the earlier decision of the EAT in Ginn v Tesco Stores Ltd UKEAT/0197/05 is helpful in its decision that for disability purposes the conditions that may not in themselves be disabilities can, when viewed together, amount to a disability.