Mart v Assessment Services Inc

An impairment of vision is not excluded as "correctable" merely because spectacles or contact lenses remove the visual symptom. Whether it is correctable under Schedule 1 to the Equality Act 2010 is a practical, fact-sensitive question. The tribunal may consider whether using the corrective aid causes adverse consequences that make the purported correction unacceptable or unworkable.

A claimant must, however, advance the disability relied on. Where a claim is confined to diplopia, unpleaded facial disfigurement, anxiety or depression cannot be treated as additional disabilities without amendment and supporting evidence.

The appellant alleged disability discrimination arising from diplopia. Her prescribed contact lens removed her double vision by occluding vision in one eye. She contended on appeal that its cosmetic effect and restricted peripheral vision meant that her condition was not truly correctable.

The Employment Judge had held that diplopia was excluded from the statutory definition of impairment because it was correctable by a contact lens. The appellant also sought to rely on facial disfigurement and anxiety and depression, although she had previously confined her claim to diplopia. The central issue was the meaning of "correctable" in paragraph 5 of Schedule 1 to the Equality Act 2010.

1. Appeal refused. The Employment Judge was entitled to decide the claim on the pleaded disability of diplopia. The appellant had excluded facial disfigurement and anxiety and depression as bases of her claim during the preliminary process. A claim based on those conditions would have required amendment and evidence. The cosmetic consequences of the lens therefore did not convert this into a disfigurement claim.

2. Paragraphs 5(1) and 5(3) of Schedule 1 to the Equality Act 2010 exclude a visual impairment where it is correctable by spectacles, contact lenses or prescribed means. Whether an impairment is correctable is nevertheless a practical and fact-sensitive issue. It is proper to consider both whether the aid resolves the impairment and whether its use produces adverse consequences, such as discomfort or infection, that make the solution unacceptable or unworkable.

3. The statutory question is not answered solely by the removal of the visual symptom. Equally, a theoretical or minor disadvantage does not prevent a corrective aid from being a real and practical solution.

4. On the evidence, the lens resolved the appellant's double vision. There was no evidence that any loss of peripheral vision, cosmetic effect, anxiety or depression made use of the lens unacceptable or unworkable. The impairment was therefore correctable, and the Employment Judge's decision stood.

• Employment Appeal Tribunal: Appeal from the Employment Judge's preliminary decision upheld; the appeal was refused.
• Employment Tribunal: Held that the appellant's diplopia was correctable by a contact lens and was consequently excluded from the relevant definition of impairment.