Veitch Penny LLP - Exeter | Crediton, Devon

Case

Commissioner of Police of The Metropolis v Virdi
Employment Appeal Tribunal - (18 October 2006)

Issues

(1) The Disability Discrimination Act 1995
(2) Meaning of disability
(3) "Substantial adverse effect"

Facts

Sergeant Verdi was a serving Police Officer. He had made an application to the Employment Tribunal complaining of disability discrimination against his employer. He alleged that his employer had failed to make proper adjustments so as to cater for his disability when taking examinations for promotion from sergeant to inspector. He also alleged that he had been discriminated against regarding the handling of a grievance he submitted.

An issue arose as to whether the effect of his condition was substantial, and therefore whether Sergeant Verdi was disabled for the purposes of the Disability Discrimination Act 1995. This was considered at a pre-hearing review.

The Tribunal heard that Sergeant Verdi had started to experience problems with his left eye in 2000. He had been diagnosed with a left sub-foveal retinal pigment epithelial detachment of the eye. This meant Sergeant Verdi would see a central grey cloud in his left eye and the vision in his left eye was blurred all over. The percentage loss of central vision in his left eye was approximately 40% and as such met the definition of chronic visual impairment as defined by the World Health Organisation. The condition had various practical effects on his life. His reading span was limited to 30 minutes, when he would have to take a break. He had to turn his head away from the normal line of vision in order to cross the road and to recognise people. He had difficulties using a computer.

Under the Disability Discrimination Act 1995 (DDA)a person has a disability if they have a “physical or mental impairment which has a substantial long term effect on [their] ability to carry out normal day-to-day activities”.

The Tribunal felt that Sergeant Virdi did fit the definition of disabled. In its Judgment, it noted that Sergeant Verdi had adopted certain strategies to help him cope with the problem including turning his head away from the normal line of vision when crossing the road and resting his eyes after reading and using a computer. The Tribunal considered previous case law from the Employment Appeal Tribunal (EAT) and felt that any coping strategies that Sergeant Verdi had adopted should be disregarded. In the Tribunal’s interpretation of previous case was that the tribunal could not take coping strategies into account.

The case was referred to the EAT. The employer referred to Government guidance which stated that if the employee was able to modify their behaviour so the impairment no longer had a substantial adverse effect, then they would not qualify as a disabled person.

Decision

The EAT upheld the employer’s appeal. The EAT concluded that the first Tribunal had misrepresented the previous case authorities. The EAT found that the Tribunal should have taken the employee’s coping strategies into account. The matter was then referred back to the Tribunal for reconsideration.

Comments

This case states that the effect of any coping strategies are to be treated differently by a Tribunal than the effect of medical treatment or other such measure. This, in practice, is likely to be a difficult exercise to achieve.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.