In the case of Bessell v The Chief Constable of Dorset Police 1400313/2016, an Employment Tribunal in Southampton found that the fact the Claimant, Mr Bessell, suffered from colour blindness did not render him a disabled person within the meaning of the Equality Act 2010. The Equality Act 2010 does not apply in Northern Ireland. The corresponding legislation in Northern Ireland in relation to disability discrimination is the Disability Discrimination Act 1995. A person satisfies the definition of a disabled person under the legislation if they have “…a physical or mental impairment which has a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities.”
In this case the parties accepted that the Claimant suffered from a physical impairment, deuteranopia i.e red/green colour blindness. On the issue of whether this colour blindness had a substantial and long term adverse effect on the Claimant’s ability to carry out normal day to day activities, the focus of the argument was on what was the substance of the effect of the impairment.
The Claimant relied on three activities which were conceded to be normal day to day activities. These were cooking, reading/interpreting documents/texts and watching sport. The Claimant gave various examples of the ways in which he considered his colour blindness to have an effect on these activities. However, the Tribunal determined that, if there was a “coping strategy” which could be reasonably expected of the claimant, then consideration should be given to the extent to which any adverse effect was removed, taking that particular coping mechanism into account. The Tribunal found that in nearly all instances the Claimant had a coping strategy which effectively negated any adverse impact.
For example, in relation to reading, the Claimant told the Tribunal that he had difficulty reading a book to his 2 year old son. That book was designed to help children distinguish between and identify colours. The Employment Judge considered that “[i]f one asked whether reading a book of that very specific sort was a normal day to day activity, the answer would likely be no given the very low frequency of its likely occurrence as an event. It is, however, an example of a broader difficulty with reading. The issue of the frequency with which such problems might arise then goes to the question of how substantial an effect the impairment could be said to have.”
In relation to cooking, the Claimant gave evidence that he had difficulty telling by the colour of the food, in particular chicken, whether it was fully cooked or not. However, he could and did use a skewer test to see whether the juices in the meat were running clear and this effectively arrived at the same result. The Claimant also indicated that he could not tell by the colour whether meat or fish was fresh, but he was able to use other senses such as smell and touch. The only exception was that the Claimant was unable to tell whether or not potatoes were green. He gave evidence that he had to rely on his wife for assistance, but that if she were not around, the Claimant either had to wait or cook something else. The Employment Judge commented “[t]he problem was real but I had no evidence to suggest that it arose sufficiently frequently that it could be said that the Claimant’s impairment created a substantial disadvantage when considering “cooking” more generally as the relevant activity.”
The Claimant also gave evidence that he had difficulties in relation to documents and text. He gave the specific example of a form that had grey and pink sections that had caused some initial difficulties. However, the Claimant conceded that once he had completed this form a couple of times, he knew where the information was to be filled in and could ask his colleagues to check it.
The Claimant could not also differentiate between colours used on underground maps, although he was able to look at the destinations and other information about the lines. The Employment Judge held that if considering a cross section of the public, there was no evidence before the Tribunal to suggest that the Claimant would take appreciably longer to get to grips with maps or forms than other people.
The Employment Judge took a similar view on the extent of the adverse effect on the Claimant’s ability to watch and follow sports. The Claimant gave evidence that he had particular difficulty in identifying the brown and green balls in snooker, however, the tribunal held that this problem could be largely alleviated by the commentary which accompanied most sporting events and using subtitles/captioning.
In summary, the Claimant was unable to establish that his condition had a substantial and long term adverse effect on his ability to carry out normal day to day activities and therefore his claim of disability discrimination could not proceed.
Katie Buchanan is a solicitor in Worthingtons Commercial Solicitors, Belfast, where she specialises in Employment Law. She can be contacted on 02890434015.