07 June 2019 #Employment
The recent case of Mart v Assessment Services Inc has brought the question of disability and medical treatment to the forefront once again.
The Equality Act 2010 offers special protection to individuals who are disabled. For the purposes of the Equality Act, an individual will be disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
An impairment will be treated as having a substantial adverse effect even if measures are being taken to correct it provided that the impairment would have that effect if measures were not in place. Measures here, include medical treatment and the use of a prosthesis or other aid. However, the Equality Act 2010 expressly makes clear that if a person is visually impaired they will not be classed as disabled if their condition is correctable by spectacles or contact lenses or in such other ways as may be prescribed.
There have been a number of cases relating to the extent to which measures should be taken into account when assessing disability.
For example, in Fathers v Pets At Home and another, the EAT held that relatively little evidence may be required here. For example, it recognised that for conditions like depression it will be common knowledge that treatment such as counselling and anti-depressants will assist with the condition. Further, in Woodrup v London Borough of Southwark, the Court of Appeal held that employers should focus on what would happen if the treatment stopped (rather than focussing on what the effect would be if it had never been in place). This way improvements already achieved by the treatment could be taken into account.
In Mart v Assessment Services Inc, the issue of contact lenses and visual impairment arose. The Claimant had brought a claim for discrimination on the grounds of disability, namely diplopia (commonly referred to as double vision). Her diplopia was corrected by wearing a contact lense which visibly blacked out her eye. As her impairment could be corrected, the Tribunal felt that this fell within the exception in the Equality Act and held that she was not disabled. The claimant appealed arguing that, whilst her double vision was corrected, her contact lense disfigured her by blacking out her eye and further argued that her condition had not been corrected as her peripheral vision was restricted due to the contact lense.
The EAT agreed with the Tribunal that her diplopia did not amount to a disability. The Claimant had not pleaded that her disfigurement or restricted vision were disabilities. In this case there was medical evidence suggesting that her diplopia had been corrected by the contact lense and the Tribunal had not needed to take into account other consequences that were not pleaded. In looking at the meaning of ‘correctable’ in the Equality Act, the EAT considered whether it should take into account any adverse consequences of the correction.
In its opinion, the EAT felt that whether or not an impairment is "correctable" is a practical issue. It considered that regard should be given to both whether the impairment (such as diplopia) was resolved by use of the lens and also to whether the resolution brought with it unacceptable adverse consequences (such as eye discomfort or infections). The EAT said this was a question of fact to be judged on a case by case basis. In this instance, the lens did correct the diplopia and there was no indication in the evidence that the side effects were such as to make the use of a lens unacceptable or unworkable. The EAT held that whilst the loss of peripheral vision may have occurred to some extent there was no evidence before the tribunal that this was such a significant side effect that the lens could not be said to provide a practical solution to her diplopia.
These cases, demonstrate the approach tribunals take when assessing disabilities which are the subject of treatment of some kind. Care should be taken as this will always be a matter of fact and assessed on a case by case basis. In light of Mart, the position on contact lenses and glasses is not as clear cut as some may have believed. The Equality Act does not appear to contain any proviso around the ‘correctable’ provision but the EAT has clearly put one in place which it considered reasonable. It is worth noting also, that the outcome in Mart may well have been different had the Claimant pleaded facial disfigurement as part of her claim.