An employment tribunal may have assumed that ‘coping strategies’ should be ignored, in the sense that they did not decrease the severity of an impairment. The EAT said this approach was wrong, and referred the case back to the tribunal to be reconsidered in the light of the 1996 Guidance on coping strategies.
Employment Appeal Tribunal, 2006. Full judgment: bailii.org.
A police sergeant developed a problem with his left eye, leading to loss of central vision there of about 40%. The appeal related to whether this had a ‘substantial’ adverse effect so as to amount to a disability.
The employment tribunal referred to ‘coping strategies’ used by the claimant. For example, he would move his head when crossing the road or trying to recognise someone, and he would need to rest for some time after reading for a period or when using a computer. His reading span was limited to about thirty minutes. (In fact the EAT had considerable doubts whether taking such rests can properly be considered a ‘coping strategy’. It was not a way in which he coped with the difficulty of reading so as to enable him to read; it simply defined the nature of the adverse impact.)
The employment tribunal said it “must not focus on coping strategies”, and: “Vicary says that a Tribunal must not make the mistake of taking the efforts that Mr Virdi makes to mitigate the effect as impacting on the severity of the disability.”
Employment Appeal Tribunal decision
The EAT was concerned that in not focussing on coping strategies the employment tribunal had taken an approach which contradicted paragraph A7 of the 1996 Guidance on definition of disability:
A7. Account should be taken of how far a person can reasonably be expected to modify behaviour to prevent or reduce the effects of an impairment on normal day-to-day activities. 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 EAT could not discount the possibility that the employment tribunal acted on the assumption that coping strategies should be ignored. The case was therefore referred back to the employment tribunal to be reconsidered in the light of the Guidance.
In the subsequent 2006 Guidance, the equivalent provisions are paragraphs B7-B9. Moving one’s head to see better might fall within fall within paragraph B7, so as to reduce the severity of the impairment. However, this would not be so if the stategy were ignored as a correction measure under Sch 1 para 6 – the tribunal does not seem to have been asked to consider that point. I would argue that speech techniques used by people who stammer will very often fall within Sch 1 para 6, but this remains to be clarified.
Having to take rests would probably not be seen as reducing severity – and indeed the EAT here doubted whether that was a ‘coping strategy’.