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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lothian and Borders Police v. Cumming [2009] UKEAT 0077_08_2907 (29 July 2009) URL: http://www.bailii.org/uk/cases/UKEAT/2009/0077_08_2907.html Cite as: [2010] IRLR 109, [2009] UKEAT 77_8_2907, [2009] UKEAT 0077_08_2907

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APPEARANCES

 

For the Appellant	MS A JONES (Solicitor) Messrs Maclay Murray & Spens LLP Quartermile One 15 Lauriston Place Edinburgh EH3 9EP
For the Respondent	MR A HARDMAN (Advocate) Instructed by: Messrs Hughes Dowdall Solicitors, 205 Bath Street Glasgow G2 4HG


 


SUMMARY

DISABILITY DISCRIMINATION: Disability

The Employment Tribunal found that the claimant, an applicant for appointment as a regular constable, was a disabled person. She failed the screening for the requisite vision standard. Employment Tribunal erred in finding that the respondent's refusal to allow the claimant to go forward in her professional life amounted to a substantial adverse effect. Further, Employment Tribunal's alternative conclusion that the claimant suffered from a visual impairment which had a substantial adverse affect on her ability to carry out normal day to day activities was perverse.


 


THE HONOURABLE LADY SMITH

INTRODUCTION

1. This is an appeal from a judgment of an Employment Tribunal sitting at Edinburgh, Employment Judge Craig, registered on 10 September 2008, following a pre-hearing review on the issue of whether or not the claimant was disabled at the relevant time. The Tribunal found in favour of the claimant.
2. I will continue to refer to parties as claimant and respondents.
3. The claimant was represented by Mr Hardman, advocate, before the Tribunal and before me. The respondents were represented by Ms Gilzean, solicitor, before the Tribunal and by Ms Jones, solicitor, before me.

BACKGROUND

4. The claimant is employed by the respondents as an operations co-ordinator, which is a civilian post. Also, she was appointed as a Special Constable in November 2006 and carried out Special Constable's duties until she was suspended from those duties in February 2008.
5. The claimant sat and passed the standard police entrance exam for appointment as a Special Constable. She performed very well in that exam. No special adjustments were required to enable her to sit it. Prior to her appointment as a Special Constable, the claimant had undergone a medical examination. The occupational health nurse who performed the assessment issued a "Certificate of Fitness" in respect of the claimant which included the following comments:

"Kerry Anne fails on a technical points re: her L eye. Her binocular vision, however, is excellent."

6. The reference to the claimant's left eye in that certificate is a reference to the fact that she has a mild left sided amblyopia. The vision in her right eye is, however, excellent and she does not require to wear glasses or contact lenses. The condition of her left eye was subsequently explained in a report by Dr Mark Wright, consultant ophthalmic surgeon, dated 10 March 2008 which was in the following terms:

"Re: Kerry Cumming. 3/1 Stenhouse Cottages, Edinburgh, EH11 3JG (13:03:78).

Diagnosis: Left sided anisometropic amblyopia

Left sided Brown's Syndrome

Small angled residual left eso/hypertropia following left sided recess/resection for convergent squint as a child.

Visual acuity: 6/5 (right) 6/24 (left) 15/15 Ishihara.

Thanks for asking me to see Kerry who did not really have any ocular complaints, but requires a medical report in support of her application to join the regular police force. She has currently completed one year as a Special Constable and I understand has passed all aspects of her medical examination to commence her training with the exception of her eye problems. Just to summarise, she has been left with a significantly amblyopic left eye with the best corrective vision reduced to 6/24 as consequence of her significant anisometropic astigmatism in her left eye when compared with her normal right eye. I can confirm that unfortunately at this stage there is nothing further that can be done to improve the sight in the left eye with either glasses, contact lenses, refractive surgery or operations. The visual connections in the brain have never developed as well relating to left eye when compared with the right eye as a consequence of her anisometropic amblyopia. She underwent left sided convergent squint correction for cosmetic reasons as a child and has been left with a very mild residual eso deviation. The left eye is also hypertropic with an obvious down shoot in adduction which would be most consistent with a left sided Brown's Syndrome (tight superior oblique tendon). She has a full visual field to confrontation and normal colour vision. Importantly, she has no double vision in any direction of gaze. She has a normal ocular examination bilaterally.

In summary, Kerry's unaided vision is 6/5, N5 with a full visual field with both eyes open. She will have reduced stereopsis (three dimensional vision) because of the reduced vision in the left eye. However, she is still able to thread needles and has no obvious difficulties with her distance stereopsis. Whilst the central vision is reduced in the left eye, the peripheral vision is completely normal. Therefore, she will be just as aware as you or I of an object encroaching from the left.

I would hope that Dr Jones, the force's physician, would allow her to continue her training as I do not feel her mild left sided amblyopia impairs her ability to train as a full time police officer."

7. The reference to Dr Jones was a reference to the respondents' consultant occupational physician to whom the claimant's case had been referred when, towards the end of 2007, she applied to become a Regular Constable. Her application was rejected on account of Dr Jones' advice that she failed the vision standard for recruitment as a police constable. That is a standard which is determined by Scottish Ministers. In terms of Regulation 9(1)(e) of the Police (Scotland) Regulations 2004, a candidate for appointment to a police force:

"must meet the standard of eye sight determined by the Scottish Ministers."

8. In 2003, Scottish Ministers issued a statement of mandatory requirements for eye sight standards for candidates for appointment to the police force. Those standards include that uncorrected visual acuity must be 6/36 or better binocularly, that corrected distance visual acuity must be 6/6 or better binocularly and 6/12 in either eye and that corrected near visual acuity must be 6/9 or better binocularly. In these circumstances, it is not immediately obvious why the claimant was considered not to meet the visual standard for recruitment as a police constable. Dr Wright's assessment of the claimant as having unaided vision of 6/5 N5 with a full visual field with both eyes open would seem to indicate that her uncorrected vision is better than 6/36 binocularly and since she uses no correction for her vision, the "corrected vision" criteria would not appear to be applicable. However, puzzling though that may be, it is not an issue that I require to or properly can address in this appeal.
9. The Tribunal made findings in fact regarding the claimant's eyesight which were partly based on her evidence and partly based on the medical assessments to which I have already referred.
10. The effects on the claimant of the eye conditions detailed in Dr Wright's report were found by the Tribunal to be as follows:

"She cannot look straight up with her left eye. Accordingly, to see immediately above her, she tilts her head back. In respect that she is learning to drive at present, when carrying out any manoeuvre that requires her to look over her left shoulder she twists her head right round over her left shoulder to enable her to see behind her with her right eye."

11. Also, so far as what the Tribunal refers to as "close reading work" is concerned, when the claimant carries out any such work she requires to take a break of around five minutes after reading for around twenty minutes. The purpose of that is to allow her to refocus her vision. The Tribunal does not explain its expression "close reading work" but it seems plain that it intends to denote reading work which is more demanding and intense than ordinary, everyday reading.
12. Separately, the Tribunal notes that as a result of the squint correction surgery which the claimant underwent for cosmetic reasons when she was a child, she has been left with a mild residual squint and scarring on her left eye. Her appearance is such that, looked at straight on, her left eye appears to look downwards and to the right and appears rather more bulky than her right eye.
13. On the positive side, as above noted, the claimant's binocular vision is excellent. She has a full visual field with both eyes open. She has no difficulty in recognising by sight a known person across a moderately sized room. She has no difficulty in distinguishing colour. She has no difficulty in reading ordinary newsprint, a finding which supports the conclusion that the Tribunal's reference to "close reading work" is intended to refer to something more than ordinary everyday reading. She has no difficulty in walking safely. She does not bump into things. She has successfully carried out university studies. Further, it was her case that her ability to carry out the duties required of a regular constable would be wholly unaffected by her impairments. She had carried out the duties of a Special Constable without any adverse impact from her impairments.

THE TRIBUNAL'S JUDGMENT

14. A question arose in the course of the appeal as to the extent to which the respondent took issue with the claimant's case that she could show that she was a disabled person. Having read the judgment and considered the parties' submissions, it seems clear to me that the respondents accepted that the claimant suffered from a relevant impairment, namely the eye conditions referred to and that they had an adverse effect on the claimant's ability to carry out normal day to day activities namely the three daily activities referred to above. The parties part company, however, in two respects. Firstly, whether the respondents' refusal to allow the claimant to proceed to the next step of her professional life was a relevant adverse effect and secondly whether the relevant adverse effects were substantial.
15. The Tribunal considered the cases of Patterson v Commissioner of Police of the Metropolis [2007] IRLR 763 and Chacon Navas v Eurest Colectividades SAC/13/05 2006 IRLR 706 ECJ, and concluded that the principles there set out indicated that the respondents' case in respect of the first of the above matters should be preferred. At paragraph 74 of its judgment, the Tribunal states:

"Ms Gilzean had focused on other day to day activities carried out by the claimant and argued that there was no substantial adverse effect. However if participation in professional life is also a day to day activity then the refusal to allow the claimant to go forward into that professional life amounts, in my view, to a substantial effect. It is an effect of the impairments. Thus the claimant is a person who has long term impairments that have a substantial adverse impact on her ability to carry out her day to day activities. She is therefore a disabled person within the meaning of section 1 and is entitled to the protections afforded to such persons by the DDA."

16. The Tribunal found in the alternative that the effects of the claimant's impairments were substantial. The Tribunal took account of the three matters referred to above. In addition, at paragraph 75, the Tribunal took account of the claimant's appearance including the scarring from her childhood surgery and that the left eye looked different from her right eye. As regards the fact that the claimant, when driving, has to turn further over her left shoulder, at paragraph 76, the Tribunal states:

"That would be no different from a person with no sight in their left eye. … In practical terms, when driving, the claimant is affected in the same way as such a person."

17. I note, however, that there was no evidence before the Tribunal as to what would be the nature of the adverse effect arising from the impairment of having only sight in one eye on a person when driving.
18. The Tribunal accepted that the effects of the claimant's impairment were not serious or unusually challenging. It concludes, however, in the "alternative" section of the judgment that whilst allowing for there being a range of abilities to see and have free movement of the eyes amongst the population at large, with parts of the population being able to see without difficulties and others struggling to see at distance or close up and some whose eyes are not fully symmetrical:

"Where one considers the normal range of effects on eyesight in the general population most will be correctable by spectacles, contact lenses or surgery. The effects experienced by the claimant go beyond that normal range."

19. Again, the Tribunal did not have any evidence before it as to the nature and extent of the range of eyesight impairments or their effect and correctability in the population at large. That is, however, not the only reason for the Tribunal finding itself satisfied that the adverse effect of the claimant's impairment was a substantial one. At paragraph 83 it returns to the theme of ability to progress in the recruitment process. It states:

"…if the claimant did not have the impairments she would not have been refused the opportunity to go further in the recruitment process. Accordingly when one compares the claimant with the impairments to the claimant without them, the former is substantially affected as the latter would have progressed, at the very least on to the next stage. The claimant may have failed at that stage but it is the impairments that prevents (sic) her getting there.

84. Accordingly I would find that the effects of the claimant's impairments are substantial within the meaning given in the guidance, Patterson and Goodwin. I would in any event find that the claimant was a disabled person within the meaning of section 1."

RELEVANT LAW

20. Section 1 of the Disability Discrimination Act 1995 ...the DDA) provides:

"1. Meaning of "Disability" and "Disabled person"

(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities.

(2) In this Act 'disabled person' means a person who has a disability."

21. The relevant parts, for this case, of Schedule 1 of DDA are

"4.(1) An impairment is to be taken to affect the ability of the person concerned to carry out normal day to day activities only if it effects one of the following –

…

(f) speech, hearing or eyesight;"

22. Section 3 of the DDA empowers the Secretary of State to issue guidance about matters to be taken into account in determining whether a person is disabled. The guidance relevant to the present case is that which was issued in 2006. Like all such guidance it is not an authoritative statement of the law and that is recognised in the quote "status and purpose" section at the beginning of the document. It is, however, a useful guide. In particular, it seeks to assist by providing examples of what might or might not amount to disability and highlights the key principles to bear in mind. For instance, at D4, it points out that the list in paragraph 4(1) of Schedule 1 to the DDA is not a list of day to day activities, and refers to it as a list of capacities. It continues:

"In general, day to day activities are things people do on a regular basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport and taking part in social activities."

23. These are, notably, descriptions of a person's use of their body (or, in the case mental activities, their mind) in a particular way. Thus, ordinary aspects of mobility such as looking upwards and reading are day to day activities as is driving. It is plain that these are all normal activities and would certainly be covered by the subsequent descriptions in paragraphs D5 and D6 of the guidance.
24. As discussed by this Tribunal in the case of Chief Constable of Dumfries & Galloway Constabulary v Adams questions may arise as to whether work of a particular form can be a normal day to day activity. Thus, the work of a skilled silversmith or watchmaker involving as it does, activities involved in the operation of specialised tools to craft fine objects of some precision may be normal for the craftsman but are not normal day to day activities under section 1 of the DDA. What then of participation in professional life? I would return to the discussion in paragraphs 17-20 of Chief Constable of Dumfries & Galloway Constabulary v Adams:

"17. As discussed in the case of Paterson v Commissioner of Police of the Metropolis 2007 IRLR 763, matters have changed since the coming into force of the original DDA in respect that there is now also relevant European legislation in the form of the Council directive of 27 November 2000 (2000/78/EEC) 'Establishing a General Framework for Equal Treatment in Relation to Employment and Occupation' which requires measures to be taken to combat disability discrimination in the field of employment. DDA was amended by the Disability Discrimination Act 1995 (amendment) Regulations 2003 (SI2003/1673) and in interpreting the legislation, the need to give effect to the directive requires to be borne in mind. We agree that the articulation of relevant principles set out in the case of Chacon Navas v Eurest Colectividades SA 2006 IRLR 706 is, in the circumstances binding on us. That means that we should have regard to the explanation of the aim of the Directive by the European Court of Justice in that case:

"43.Directive 2000/78 aims to combat certain types of discrimination as regards employment and occupation. In that context, the concept of 'disability' must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life."

18. Further explanation is provided at paragraph 45:

'The importance which the community legislature attaches to measures for adapting the workplace to the disability demonstrates that it envisaged situations in which participation in professional life is hindered over a long period of time. In order for the limitation to fall within the concept of "disability" it must therefore be probable that it will last for a long time.'

19. We also observe that these statements by the Court were made against the background of the opinion of the Advocate General in which the following comments are made:

"….the concept of disability in Directive 2000/78 is a community legal concept which must be interpreted autonomously and uniformly throughout the community legal system, with account taken of the context of the provision and the purpose of the legislation in question."

20. What we take from the Court's use of the term 'professional life' is that when assessing, for the purposes of section 1 of the DDA, whether a person is limited in their normal day to day activities, it is relevant to consider whether they are limited in an activity which is to be found across a range of employment situations. It is plainly not meant to refer to the special skill case such as the silversmith or watchmaker who is limited in some activity that the use of their specialist tools particularly requires, to whom we have already referred. It does though, in our view, enable a Tribunal to take account of an adverse affect that is attributable to a work activity that is normal in the sense that it is to be found in a range of different work situations. We do not, in particular, accept that 'normal day to day activities' requires to be construed so as to exclude any feature of those activities that exists because the person is at work which was the essence of the first ground of appeal. To put it in another way, something that a person does only at work may be classed as normal if it is common to different types of employment."

25. As above noted, Ms Jones relied on that passage and Mr Hardman confirmed that he did not take issue with it.

THE APPEAL

26. For the respondents, Ms Jones submitted that the Tribunal had erred in assessing what amounts to a "day to day activity" for the purposes of section 1(1) of the Disability Discrimination Act 1995 ("DDA") and also that it had erred in concluding that the effect that her visual impairment has on her ability to carry out normal day to day activities was substantial.
27. Ms Jones referred to the statutory guidance issued in 2006 at paragraph D4, D5, D6, and D7. There were there set out a series of helpful examples of normal day to day activities. The Tribunal had, in Ms Jones submission, failed to identify the particular activity that was said to be substantially adversely affected. At best, it appeared to conclude that entry into a profession was the normal day to day activity that was substantially adversely affected. That was an erroneous approach. There required to be an activity relevant to participation in professional life (Patterson) that was substantially affected and not simply participation in professional life without more. Participation in a particular professional life did not, on its own, amount to a day to day activity and that was not what Patterson or Chacon were authority for.
28. Ms Jones referred to the judgment of this Tribunal in the case of Chief Constable of Dumfries & Galloway Constabulary v Adams EATS/0046/08/BI at paragraph 20.
29. Ms Jones submitted that a specific eyesight requirement could not be said to be an activity found across a range of employment situations. It was a matter of a special, not general standard. Likewise, the Tribunal had erred in finding that the respondents' refusal to allow the claimant to move forward in her professional life amounted to a substantial adverse effect on her ability to carry out her normal day to day activities.
30. Separately Ms Jones submitted that the Tribunal's decision was perverse in finding that the effects of her impairment had a substantial adverse affect on her ability to carry out day to day activities other than the supposed "activity" as entry into the police profession. No reasonable Tribunal having regard to the evidence presented could have reached that view. Ms Jones referred to the guidance at page 9 B1 and the list of adverse eyesight effects which, it is said, would be reasonable to regard as having a substantial adverse effect. The claimant did not qualify under any item on the list. Ms Jones then referred to the list of examples where it would not be reasonable to regard an eyesight impairment as having a substantial adverse effect and submitted that the claimant's case was more akin to those examples. Ms Jones referred to the fact that the claimant had taken great pains to emphasise that her ability to carry out duties as a Regular Constable would be unaffected by her impairments and also that she had not experienced any adverse effects in carrying out the duties of a Special Constable and indeed, had received commendations for the performance of those duties (paragraph 32 of the Tribunal's judgment). She also referred to Dr Foster's report and to the claimant's binocular vision being excellent. Ms Jones submitted that the Tribunal had taken into account an irrelevant factor, namely the claimant's appearance. Further, it had focused on the impairment without taking account of the fact that in general terms the claimant's eyesight is above average. Nor had it taken account of paragraph B7 of the statutory guidance which indicates that if a person can behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day to day activities the person would no longer meet the definition of disability. The coping strategies referred to by the claimant were such as to show that the impairment had no substantial adverse effect on her ability to carry out day to day activities.
31. In common with the claimant's position before the Tribunal, Mr Hardman submitted that the claimant was a disabled person because the effect of her visual impairment was that the respondents had disallowed her from proceeding in her professional life and that was a substantial effect. It was not a matter of anything that the claimant was unable to do that prevented her to progress in her profession. It was a matter of her not being able to get through the gateway of the visual standards imposed by the respondents. That being so, the impairment in her eye essentially prevented her from progressing in her career.
32. So far as the perversity ground was concerned, Mr Hardman submitted that it could only succeed if an overwhelming case was made out that the Employment Tribunal had reached a decision which no reasonable Tribunal on a proper appreciation of the evidence of the law would have reached. He referred to the passage in Yeboah v Crofton [2002] IRLR 634 cautioning against rushing to conclude that a decision is perverse even if the Appeal Tribunal has grave doubts about its decision. Although it was not the claimant's case before the Tribunal that her need to take a break around every twenty minutes for around five minutes when carrying out "close reading" amounted to a substantial adverse effect, the Tribunal having found that it did, he submitted that the respondents faced an insurmountable barrier in their perversity case. The Tribunal was entitled to conclude that it amounted to a substantial and long term adverse effect on her ability to read. It could not be maintained that an overwhelming case was made out that the Employment Tribunal reached a decision which no reasonable Tribunal would have reached.

DISCUSSION AND DECISION

33. The law which the Tribunal required to apply to the facts of this case is that set out in section 1 and Schedule 1 of DDA as discussed in the authorities to which I have referred. Thus, the Tribunal require to consider firstly whether the claimant had an impairment. It was conceded that she did and it was as set out in Dr Wright's report.
34. The Tribunal then had to consider whether that impairment fell within the scope of paragraph 4(1) of Schedule 1 to the DDA. It did, because it affected the claimant's eyesight.
35. Next, the Tribunal required to consider whether the impairment had an effect on the claimant's ability to carry out normal day to day activities. There was no dispute between the parties that it affected her abilities in the three respects to which I have referred namely that to see upwards she required to tilt her head, when looking over her shoulder for driving purposes she required to twist her head right round over her left shoulder, and when carrying out close reading work she required to take a break of around five minutes after reading for around twenty minutes.
36. I turn then to the question of whether the Tribunal erred in accepting the claimant's argument that her visual impairment had a further effect on normal day to day activities in respect that it was the cause of the respondents refusing to allow her to progress in her application to become an Regular Constable by reason of the fact that, in their assessment, she did not meet the Scottish Ministers mandatory requirements. I am satisfied that it did. I accept that applying for entry into a profession is something which many people do. I am not, however, persuaded by the claimant's argument that that is sufficient for the purposes of her argument. Making an application to enter a profession or, indeed, for any job does not imply any particular physical activity. Further, the potential employer's refusal to progress the application is not a physical effect. If it was then a person who themselves suffered no adverse effects from a subsisting physical impairment would be rendered disabled if a potential employer rejected their application on the ground of that impairment. Thus if, for example, a person with an asymptomatic but disfiguring facial scar applied for a promotion which involved a move from the "back office" to considerable interface with the public and was rejected because of the scar, on the claimant's argument, that person, though suffering no adverse effects from the scar would be rendered disabled in terms of section 1 of the DDA by the employer's decision. Such a case, in my view, plainly would not fall within the intention of the legislation. Further, the scarred employee in my example would not, on the claimant's argument, be disabled if his employer did grant him the public interfacing promotion that she sought. The status of disability for the purposes of the DDA cannot be dependent on the decision of the employer as to how to react to the employee's impairment yet that is, in essence, the argument that the claimant seeks to advance. I cannot, accordingly, accept that the reasoning in paragraph 74 of the Tribunal's judgment is well founded. It proceeds on a misunderstanding of Patterson and Chacon. They are not authority for the broad proposition that being afforded general participation in or access to professional life is a day to day activity. So far as the principles that are vouched by those authorities are concerned, I would refer to my discussion in Adams.
37. I turn then to the question of whether the Tribunal erred in determining that the claimant had established that her impairment had a "substantial" adverse effect for the purposes of section 1(1) because it prevented her moving forward in her professional life. I agree that it fell into error in that respect for the same reasons as above namely, essentially, that the respondents' refusal to allow her to progress to the next stage of her application was not a relevant adverse affect for the purposes of section 1.
38. I turn, finally, to the respondents' perversity argument. A striking feature of this case was that the claimant was insistent that she had not, in any way, been impaired in her ability to carry out all the duties required of a Special Constable, nor would she be impaired in any respect in her ability to carry out the duties required of a Regular Constable. The Tribunal makes no findings as to the nature and extent of the activities that were and would be involved in either post but it can safely be assumed that they involve a police officer requiring to see above them at times, requiring, if they drive, to look over their left shoulder at times and requiring to carry out reading work including close reading work at times. It is also notable that the claimant was found not to suffer from any of the inabilities or difficulties listed amongst the examples in the guidance (p.37) of cases where it would be reasonable to regard an impairment as having a substantial adverse affect. So far as reading was concerned, the Tribunal separated out close reading as being the activity during which the claimant took breaks but that requires to be read in the context of it also having found that she has no difficulty in reading ordinary newsprint, that she did not require special adjustments (such as extra time) when she sat the standard entrance exam for the police service and that she has completed a course of university study without requirement for any adjustment other than self managed breaks from reading. Also, the Tribunal had regard to certain irrelevant factors. The first of these was the claimant's appearance. The physical appearance of her eyes and the scar from her childhood surgery were not said to have any effect on her at all and they could not, accordingly, be of any relevance when assessing the substantiality of adverse effects. The second was the comparison of the claimant with a person who has no sight at all in one eye. Without evidence as to the nature, quality and effect of that different visual impairment, the Tribunal was not in a position to make any such comparison and should not have done so. The third matter was the comparison between the claimant and the eyesight variations amongst the population at large. Again, the Tribunal heard no evidence about eyesight in the general population and could not properly make any assumptions about it or about how the claimant's eyesight compared to it. In these circumstances I am satisfied that the respondents' case that the Tribunal's decision that such adverse effects as arose from the claimant's impairment were substantial is a perverse one. It is immediately surprising arising as it does from a judgment characterised by a picture urged on the Tribunal by the claimant herself of the extent to which she has no difficulties at all and is herself satisfied that her eyesight impairment would not impact at all on her work as a police officer. As I have already commented, it is evident that that work would be bound to involve the activities which the Tribunal identified as being affected by the claimant's impairment.
39. On the whole facts found by the Employment Tribunal, the only conclusion reasonably open to it was that whilst the claimant's eyesight impairment gave rise to some adverse effects, they were limited and minor in character. Comparing the way that the claimant functioned from an eyesight perspective with her impairment to the way she would function if she did not have it could only disclose differences that were not substantial within the meaning of section 1 of the DDA. A1 of the Guidance pointed to that conclusion. Further, whilst that conclusion is arrived after allowing for the utilisation by the claimant of the coping strategies referred to (looking up, looking further over her shoulder and taking five minute breaks when carrying out close reading work) these are all straightforward matters which are not, on the findings difficult to employ and can properly be taken into account in reaching the conclusion that the claimant is not disabled (see: paragraph A7 of the Guidance). In all the circumstances, I am persuaded that no reasonable Tribunal, on these facts, could have concluded that the claimant's eyesight impairment has a substantial adverse affect on her ability to carry out normal day to day activities.

DISPOSAL

40. I will, accordingly, pronounce an order upholding the appeal and substituting for the judgment of the Employment Tribunal a judgment that the claimant is not a disabled person within the meaning of section 1 of the Disability Discrimination Act 1995.