Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
The claimant/appellant claimed that she had been indirectly discriminated as a result of her disability. Whilst she had a facial disfigurement and depression, which would be regarded as disabilities she based her claim on diplopia (double vision). The appellant corrected this double vision using contact lenses but this was regarded as ‘cosmetically unattractive’ as it blacked out the eye.
The question for the Employment Appeals Tribunal was whether this was a disability under the definition given to disability in Schedule 1, Para 5 of the Equality Act 2010 (Schedule 1, Para. 6 of the Disability Discrimination Act 1995 in Northern Ireland). This states that where medical treatment is in relation to the impairment of a person’s sight, to the extent that the impairment is, in the person’s case, correctable by spectacles or contact lenses or in such other ways as may be prescribed then it will not be regarded as a disability.
His Honour Judge Summers held that the statutory interpretation is such that if the impairment is corrected by the contact lenses then the appellant is not permitted to rely upon any consequential cosmetic differences as a basis for disability discrimination. He did say on the interpretation of ‘correctable’ that it is a practical consideration that must be looked at on a case-by-case basis. This should examine the consequences of resolving the sight impairment rather than merely looking at the sight impairment being corrected. On this point, the appellant’s appeal was refused and that the cosmetically unattractive consequences of correcting sight impairment did not lead to a disability as a result of diplopia.
Practical Lessons
This case outlines the interpretation of Schedule 1, Para. 6 of the Disability Discrimination Act 1995 which creates an exception to a disability where it relates to ‘correctable’ sight impairment.
The narrow definition used by His Honour Judge Summers is one that is seemingly unfair to the appellant in that it failed to give much weight to effect of the actual correction.
This narrow definition does have a caveat in that each case should be considered separately and the factual context must be considered. This means that employers may have to be aware of sight issues, as a disability, where their correction can lead to a significant consequence.
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