Double vision correctable by wearing a contact lens in one eye did not qualify as a disability.

What is a disability?

A condition will be a disability under the Equality Act 2010 if it is a physical or mental impairment which has a substantial and long-term adverse effect on someone's ability to carry out normal day-to-day activities. The adverse effect will be long term if it has lasted or is likely to last for 12 months (or until the end of the person's life where the condition is terminal).

Often the key question for a tribunal where disability is disputed by an employer will be whether the impairment had the required substantial adverse impact on what the claimant can do.

Will effective treatment mean there is no disability?

The general rule is that where measures are being taken to treat or correct the condition (such as medication, psychotherapy, a prosthesis or other medical aid), the tribunal must consider the impact of the condition on the person if those measures were not taken. The Court of Appeal has clarified that a tribunal should decide how an impairment would affect the person's ability to carry out day-to-day activities if the measures were stopped rather than if they had never been taken. Permanent improvements to a condition which have been achieved by treatment may therefore be taken into account.

Correctable sight impairments

Sight impairments which are correctable are an exception to this rule. Problems with vision which are correctable by spectacles or contact lenses do not qualify as a disability as they will not be found to have a substantial adverse effect on the claimant's ability to carry out day-to-day activities.

Case details: Mart v Assessment Services Inc

Mrs Mart suffers from a number of conditions including diplopia (double vision), facial disfigurement, anxiety and depression. She brought a disability discrimination claim against her employer and made clear at a preliminary stage that her claim was based only on her diplopia. An employment judge decided that this impairment was not a disability because it was corrected by wearing a contact lens and so did not have the required substantial adverse effect on her ability to carry out day-to-day activities. The claim was struck out on this basis.

Mrs Mart appealed. The contact lens which she had to wear blacked out one eye. She argued that this had a disfiguring effect and led to restrictions in her peripheral vision. She argued that the employment judge had taken too narrow a view of her case by not taking these side effects of treatment into account.

The EAT upheld the decision of the employment judge. It made clear that the decision for the judge was simply whether the diplopia was corrected by the contact lens. The evidence of Mrs Mart's consultant showed that it was. The EAT held that the side effects of the lens in this case did not change the fact that the lens corrected the impairment and so fell within the exception.

The EAT did comment, however, that the question of whether a sight impairment is correctable must be taken on a case by case basis. It suggested that there may be some cases where the side effects of treatment are such that the impairment cannot be said to be corrected. Lord Summers commented:  "I consider that regard could properly be had to whether the impairment (such as diplopia) was resolved by use of the lens but also whether the resolution brought with it unacceptable adverse consequences e.g. eye discomfort or infections."

Wrigleys' comment

Employers should be aware that the question of whether a condition is a disability or not is fact specific. Where disability is disputed by an employer, the tribunal will focus on the particular impact the condition has on the employee. This case suggests that there may be some forms of treatment which are successful in correcting a visual impairment but whose unacceptable consequences will mean that the impairment does have the required substantial adverse effect to qualify as a disability.

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