Mart v Assessment Services Inc

The correctability of a sight impairment by spectacles or contact lenses is a practical question. Correctable must be judged case by case. Regard may be had to whether the correction works in practice and whether it produces unacceptable adverse consequences. Practical impediments to use may be relevant to whether the impairment is truly correctable. A claimant may not, without amendment, rely on distinct disabilities that were excluded from her pleaded case.

The appellant appealed an Employment Tribunal decision rejecting a disability discrimination claim based on diplopia. The appellant had earlier stated that her claim concerned diplopia only. The central issue before this court was the construction of Schedule 1, paragraph 5 (paras (1) and (3)) of the Equality Act 2010 and whether diplopia was excluded as an "impairment" because it was correctable by contact lens. The respondent relied on medical evidence that a lens resolved the double vision. The appellant argued the lens had disfiguring side effects and restricted peripheral vision, making correction impractical.

(1) Appeal dismissed. The decision of the Employment Judge is upheld and the appeal is refused.

(2) The words "correctable by spectacles or contact lenses" in Schedule 1 paragraph 5 of the Equality Act 2010 are to be assessed practically. The court will consider not only whether the device removes the impairment but whether correction carries adverse consequences that make it impractical or unacceptable to the claimant.

(3) Whether an impairment is "correctable" is a matter for case‑by‑case factual assessment having due regard to the context. Matters such as discomfort, infections, or other side effects may be relevant to the practical availability of correction.

(4) The Employment Judge was entitled to treat the evidence here as showing the lens corrected the diplopia in practice. There was no evidence before the tribunal that side effects rendered the lens an impractical solution. Accordingly the impairment fell within the exclusion in Schedule 1 paragraph 5 and was not an "impairment" for the purposes of the claim.

(5) The tribunal was not required to consider cosmetic disfigurement or anxiety and depression where the appellant had confined her pleaded case to diplopia and had not amended her case to raise those grounds. If such complaints were to be relied upon, the claim should have been amended and appropriate evidence led.

(6) Practical orders: the Employment Judge's decision is upheld. No remittal or cost directions of material relevance are made in this judgment.

• Employment Appeal Tribunal: Appeal from an Employment Tribunal decision. The EAT upheld the Employment Judge's dismissal of the disability discrimination claim and refused the appeal.
• Employment Tribunal: Original hearing and decision (referred to in the judgment). The Employment Judge had held that the diplopia was correctable by contact lens and thus fell within the exclusion in Schedule 1 paragraph 5 of the Equality Act 2010.