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Disability discrimination

Disability Discrimination

A disability is a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to do day to day things. The Equality Act 2010 specifically excludes from the definition any visual impairment which is correctable by contact lenses or glasses. Sometimes, the correction of visual impairments can create side effects. The Employment Appeal Tribunal has recently looked at whether side effects can stop the impairment being correctable.

In Mart v Assessment Services, the employee brought a claim for disability discrimination based on her diplopia (double vision). She also had a facial disfigurement, which caused depression and anxiety, but she chose to limit her claim to the double vision. She was prescribed a contact lens which corrected the problem. However, the lens visibly blacked out her eye, which the employee said was a disfiguring side effect (disfigurement can also be a disability if it is ‘severe’). The lens also restricted her peripheral vision. For these reasons, the employee said the lens had not corrected her vision and she was therefore disabled.

The employment tribunal said that she was not disabled because the lens corrected the relevant impairment – her double vision. The anxiety and disfigurement issues were not relevant because she had specifically chosen not to rely on them. The EAT agreed. There might be cases where lenses corrected the problem but created another. A condition might not be ‘correctable’ in someone who cannot tolerate the lens, for example due to dry eyes or susceptibility to infection. In this case, although the lens affected the employee’s peripheral vision, it was not so significant that it stopped the lens being a practical solution to her double vision problem. There was also no evidence to suggest that her anxiety and depression was connected to the lens and stopped her from wearing it (and she hadn’t argued that in her case anyway).

The situation may have been different if the employee had relied on facial disfigurement as her impairment, with the lens forming part of that argument. Anxiety and depression can also be impairments. Any such conditions would have to meet the legal test for disability though and be specifically relied on in tribunal proceedings.

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