A consultation has been opened on new guidance relating to the right of access (subject...
Disability discrimination and the side effects of treatment
Mart v Assessment Services Inc
The Equality Act 2010 excludes an impairment of vision where ‘in the person's case, correctable by spectacles or contact lenses or in such other ways as may be prescribed’. ‘Correctable’ is a practical question which must consider not only whether the impairment was corrected but whether there are unacceptable adverse consequences.
This is in contrast to other disabilities when, the positive effect of measures taken to treat or correct an impairment are generally excluded when assessing whether a person is disabled, e.g. does the impairment have a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities? So, the test is normally - if they stopped taking the medicine, what would the effects be?
Mrs Mart had diplopia (double vision) and was prescribed a special contact lens. The lens corrected and improved her vision but was, she claimed, disfiguring as it visibly blocked out her eye and she claimed her peripheral vision was affected. She brought an indirect disability discrimination claim because of her disability of diplopia She did not rely on other impairments, including facial disfigurement, anxiety and depression. A tribunal held that she was not disabled because her diplopia had been corrected. She appealed.
Mrs Mart argued that the tribunal had taken too narrow a view of her case. Specifically, she argued that it had not taken into account the side effects of her contact lens which included disfigurement (because one eye was visibly blocked out) and the restriction of her peripheral vision. This meant, she contended, that her diplopia had not been ‘corrected’.
The EAT dismissed her appeal and, in so doing, considered the meaning of ‘correctable’.
In assessing whether a sight impairment is correctable, a tribunal is not restricted to looking only at whether spectacles or contact lenses provide a technical or theoretical solution. It can look at all the circumstances, including whether the side effects are unacceptable so as to prevent the corrective measures being a real solution – the examples given were discomfort or eye infections. Here, even though the corrective measures for Mrs Mast came at a cost, they did as a matter of fact, correct the impairment. There was no evidence before the tribunal that the loss of peripheral vision made use of the lens unacceptable or unworkable.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0032_18_1605.html
Every claim of this kind will be fact sensitive.
In this case Mrs Mast restricted her claim to one element of her health, namely her double vision and so the two questions for the EAT were whether her double vision was corrected and were there unacceptable adverse consequences. If she had pursued her claim based on anxiety, depression and facial disfigurement then the role of the lens and its unattractiveness would have had to have been considered and may well have produced a different result.