An employment tribunal may have assumed that “coping strategies” should be ignored, in the sense that they did not decrease the adverse impact 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: www.bailii.org/uk/cases/UKEAT/2006/0338_06_1810.html.
A police sergeant developed a problem with his left eye, leading to loss of central vision in it 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, 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. He had also limited his driving.
The employment tribunal took from one EAT decision that it “must not focus on coping strategies” but must focus on what he cannot do. The employment tribunal said too: “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 had considerable doubts as to whether taking rests after reading or using the computer for a period could properly be considered a coping strategy. “It is not a way in which he copes with the difficulty of reading so as to enable him to read; it simply defines the nature of the adverse impact. He cannot read for periods without a break.” However the case was apparently argued in the employment tribunal on the basis that taking breaks was a coping strategy, so the EAT proceeded on that basis.
The EAT said the tribunal had misinterpreted the two previous EAT decisions, and should have followed paragraph A7 of the 1996 Guidance on definition of disability, which said:
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.
When actually deciding that his impairment was a disability, the employment tribunal may have correctly taken into account the mitigating effect of the “coping strategies”, despite what it said about the two previous EAT decisions. However it was not clear whether the employment tribunal had done this, so the case was referred back to the employment tribunal to be reconsidered in the light of the Guidance.
The Employment Appeal Tribunal (EAT) seems to have gone on the basis that what the statutory guidance said represented the law. This case was prior to the 2009 House of Lords decision in SCA Packaging v Boyle, where Baroness Hale said that in interpreting the DDA the court starts “with a clean slate” – though the statutory guidance must be taken seriously into account when it deals with the factual matters relevant to the application of the legal tests. See further Legal effect of statutory guidance and codes, and my discussion of these particular provisions in the guidance in Failure to modify behaviour.
In the 2011 Guidance, the equivalent provisions are paragraphs B7-B10. If one assumes the guidance is correct, moving one’s head to see better might fall within paragraph B7, so as to reduce the severity of the impairment. However, this would not be so if the strategy 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.
Having to take rests would probably not be seen as reducing the impact of the impairment – as the EAT says it seems to be part of the adverse impact rather than a ‘coping strategy’.