Disability discrimination: Lothian and Borders Police v Cummings

Chief Constable of Lothian and Borders Police v Cumming


Facts


Ms K Cumming is employed by the Lothian and Borders Police as an operations co-ordinator. She was also a special constable until February 2008. She passed the police entrance exam to be appointed as a special and performed well.


Prior to her appointment, she had a medical examination which noted that she had a problem with her left eye, but that her binocular vision was unaffected. A medical report stated that she has mild left-sided amblyopia. It affected her abilities in three respects: to see upwards, she had to tilt her head; when looking over her shoulder while driving, she had to twist round; and when carrying out close reading work, she needed to take a break every 20 minutes.


Her application to become a regular constable was rejected as she failed the vision standard for recruitment to the police force set by Scottish ministers. Cumming brought a claim for disability discrimination and the tribunal held a pre-hearing review to determine the issue of disability.


Decision


 The employment tribunal held that Cumming had long-term impairments that have a substantial adverse impact on her ability to carry out day-to-day activities – a decision made on the basis that participation in professional life is a day-to-day activity, and the refusal to allow her to go forward in that professional life amounted to a substantial effect. In the alternative, it concluded that there was a substantial adverse effect even without taking into account the effect on Cumming’s career. The police appealed to the Employment Appeal Tribunal (EAT).


It held that the tribunal erred in holding that the visual impairment had an effect on normal day-to-day activities because it was the cause of the police refusing to allow her to progress in her application to become a regular constable. The police force’s refusal to allow her to progress was not a relevant adverse effect. In Paterson v Commissioner of Police of the Metropolis, the EAT held, following the European Court of Justice case Chacon Navas, that career-related examinations and assessments could be normal day-to-day activities. However, the EAT in this case held that neither case supported Cumming’s argument that participation and progression in a particular professional life was, by itself, a normal day-to-day activity under the Disability Discrimination Act (DDA).


While the eyesight impairment did give rise to some adverse effects, they were limited and minor in character, and not substantial within the meaning of section 1 in the DDA. The EAT said that the 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, the employment tribunal’s alternative conclusion that the claimant suffered from a visual impairment which had a substantial adverse effect on her ability to carry out normal day-to-day activities was perverse. The appeal was accordingly allowed and a judgment that Cumming was not disabled was substituted for that of the tribunal.


Implications


This case sensibly establishes that a person’s inability to meet the physical requirements for entry into a job or profession is not a relevant adverse effect on that person’s ability to carry out normal day-to-day activities for the purposes of establishing disability. The EAT also noted that the status of disability for the purposes of the DDA could not be dependent on how the employer reacted to the employee’s impairment.


Russell Bradley, employment partner, DLA Piper

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