An employee’s diplopia, correctable by contact lenses, albeit with side effects, was found in a recent case not to be a disability for the purpose of the Equality Act 2010. Employers should be cautious, however, as whether a visual impairment is a disability or not will turn on the specific facts of the case.
Under the Equality Act 2010, impairments of sight correctable by spectacles or contact lenses, or in such other ways as may be prescribed, will not be deemed to be a “disability” for the purposes of the Act.
In this recent case, Ms Mart brought a claim against her employer, for discrimination on the grounds of disability, due to her diplopia, a condition causing double vision. She did not plead any of the other conditions which she suffered from, including facial disfigurement, anxiety and depression.
She claimed that her corrective contact lens had side effects, including disfiguration and restricted peripheral vision, and as a result had not corrected her diplopia.
The Employment Tribunal (ET) held that as Ms Mart’s double vision was corrected with contact lenses, this would not amount to a disability. Ms Mart appealed to the Employment Appeal Tribunal (EAT) on the grounds that the judge had taken an excessively narrow view of her case.
The EAT held that the ET was only required to deal with the question of whether diplopia was a disability. If Ms Mart had wanted to plead her additional conditions as disabilities, she would have been required to amend her claim.
The EAT found that whether an impairment is “correctable” should be judged on a case by case basis, including whether the solution had any unacceptable adverse consequences. If it did, this would be relevant to whether the impairment was resolved by the use of spectacles or the contact lens. In this case, the lens corrected the diplopia and there was no evidence to suggest that the side effects made the solution unacceptable or unworkable.
The EAT therefore concluded that the diplopia was correctable and not a disability.
It is worth noting the EAT’s comments on the scope of Ms Mart’s pleadings. Her disfigurement, anxiety and depression were not pleaded as disabilities, which removed them from consideration. A wider scope of pleadings would make a judge more likely to countenance further possible claims.
For more information, please contact Kathy Halliday in our Employment Law team on 0121 227 3711 or khalliday@vwv.co.uk.
