Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 1250/02

CLAIMANT: Paul Cosgrove

RESPONDENT: Northern Ireland Ambulance Service

DECISION

The unanimous decision of the tribunal is that the respondent did not unlawfully discriminate against the claimant contrary to the Disability Discrimination Act 1995.

Appearances:

The claimant was represented by Mr A Sands, Barrister-at-Law, instructed by the Equality Commission.

The respondent was represented by Mr F O'Reilly, Barrister-at-Law, instructed by the Directorate of Legal Services, Central Services Agency.

1. .1 The claimant presented an originating application to the tribunal on 20 May 2002, in which he complained that he had been unlawfully discriminated against by the respondent pursuant to section 5 of the Disability Discrimination Act 1995 (DDA), arising out of his application for the post of Emergency Ambulance Person (Relief). By Notice of Appearance, received by the tribunal on 8 August 2002, the respondent denied that he had been unlawfully discriminated against, contrary to the DDA.
2. .2 At the outset of the proceedings there was no dispute between the parties that the claimant had a disability for the purposes of the DDA and that he was therefore a disabled person and the tribunal had jurisdiction to hear his claims. However, it was necessary for the tribunal to consider this issue in further detail, in light of the issues that emerged, during the course of these proceedings.
3. .3 The events, the subject matter of these proceedings, occurred in or about 2001/2002, before the DDA was amended in 2003, with effect from 1 October 2004. The tribunal, in referring to the DDA, and the terms thereof, have therefore referred to the wording of the legislation, prior to any such amendment.

The meaning of "disability" and "disabled person" are defined in section 1 of the DDA, which states:-

(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.

There was no dispute between the parties that, at the relevant time, the claimant was suffering from a physical impairment, namely a skin condition, which is known as psoriasis. Equally, there was no dispute between the parties that such an impairment would not, without more, have a substantial and long-term effect on his ability to carry out normal day-to-day activities. As a consequence, it would not be a disability and the claimant would not be a disabled person, for the purposes of the Act.

1.4 However, under schedule 1, paragraph 3 of the DDA, it is provided, as follows:-

(1) An impairment which consists of a severe disfigurement is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities.

(2) Regulations may provide that in prescribed circumstances a severe disfigurement is not to be treated as having that effect.

4. .5 From the outset of the proceedings the respondent made it clear that, in agreeing that the claimant had a disability and he was thereby a disabled person under the DDA, it had done so because it accepted that the claimant's said physical impairment consisted of a severe disfigurement and that, pursuant to schedule 1, paragraph 3 (1) of the DDA, his said physical impairment was to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities.
5. .6 The tribunal noted that the claimant's medical expert, Dr David Eedy, Consultant Dermatologist, in his report, dated 20 June 2003, stated that "Mr Cosgrove's psoriasis, in my view, does not restrict or affect his ability in any way to carry out day-to-day activities".

However, the issue of whether a claimant has a disability and is therefore a disabled person under the DDA is for the tribunal to determine and not a matter of mere agreement between the parties.

6. .0 The tribunal found the following facts, which are material and relevant to its decision:-
7. .1 The claimant was born on 28 September 1964 and on 1 May 2001 applied for the post of Emergency Ambulance Person (Relief), which was also known as an Emergency Medical Technician. At the time of his application he was working as a Citybus driver. Prior to commencing work as a bus driver in 1994 the claimant had worked as a volunteer for the St John Ambulance, where he had obtained a certificate in First Aid. He had to give up this work, due to his shift pattern as a bus driver. The claimant attended an interview for the post and was successful. He was invited by letter dated 10 January 2002 to attend a pre-employment medical on 11 February 2002.
8. .2 The pre-employment medical examination was conducted on behalf of the respondent, in accordance with the normal practice and arrangements of the respondent, by the Occupational Health Department of the Royal Group of Hospitals Trusts, who carry out such examinations on behalf of a number of organisations/companies, both in the public and the private sector, and including the respondent.
9. .3 The claimant was examined on 11 February 2002 by Dr Martin Tohill, an experienced specialist registrar in occupational medicine from the occupational department of the Royal Group of Hospitals Trusts. He took a detailed history from the claimant, noting, inter alia, that the claimant had suffered from psoriasis for 18 years all over his body – front/back of trunk, upper/lower arms/legs; his hands were generally clear though he had one 10p-sized spot on the dorsum of his left hand. He had been mostly prescribed Dovonex and more recently Dovobet. Dr Tohill noted, in particular, on his examination "generalised psoriasis, trunk, upper arms, forearms, face, 10p-sized spot dorsum on left hand; pitting of nails and marked redness and scaling of lesions on face, trunk and forearms; scaling of lesion on left hand.

In addition, he noted:-

"facial psoriasis – severe – shedding of skin

body psoriasis – severe – shedding skin

marked guttate [lesions widespread] psoriasis upper arms, forearms ++, with scaling and raw areas

psoriatic area l dorsum hand 10p-size

nail pitting ++"

Dr Tohill concluded that, due to the claimant's psoriasis and the severity and extent as found by him, the claimant, in his opinion, was not fit at the time of his examination and he would so inform the respondent. He discussed his opinion with the claimant at the end of the examination; but also in a telephone call with the claimant later that day. The tribunal believes this telephone conversation took place after Dr Tohill had confirmed his opinion with Dr Anthony Stevens, Consultant in Occupational Medicine, and Director of the said department, and who supported his opinion. Dr Tohill made clear to the claimant, in the course of the above conversations, the basis for his opinion and which he had also indicated, in the notes of his examination. It related to the risk of infection to both the claimant and the patients, but also the aggravation of the claimant's condition on his hands by the wearing of gloves. He was concerned, in particular, of the risk to a patient if a lesion of psoriasis was to be shed and became airborne in the area of the patient and he/she would thereby become infected; his skin was broken due to his condition and if a lesion came into contact with blood or body fluids then there was a risk of infection to the claimant of blood-borne viruses, such as Hepatitis B, C or HIV. He also emphasised to the claimant that he would need to be able to demonstrate good control of his psoriasis, and which was not present at that time for him to enable him to alter his opinion. He also offered to him the option of a second opinion. It would appear that this was not an option usually offered to a person attending such an examination.

10. .4 The tribunal is satisfied that in reaching his conclusions, Dr Tohill had regard to the ANHOPS Guidelines in relation to fitness to work in the Health Service, by his reference to same, albeit with a question mark, in his notes of the examination. These guidelines have been drawn up by the ANHOPS Executive Committee, in order that Occupational Health Services can take a consistent approach to the assessment of fitness to work in the NHS. These, however, are only guidelines, as was fully recognised by Dr Tohill, but do make specific references to skin diseases and the need for the following factors, inter alia, to be taken into account.

1. "Whether the future duties may aggravate the skin condition due to exposure to allergies or irritants. Latex allergy is becoming an increasing problem within the healthcare environment. Every effort should be made to avoid the use of such products.

2. Whether there is a potential cross-infection hazard due to colonisation of abnormal skin by bacteria and an increased shedding of skin scales (with increased problems for MRSA, this is a major consideration in clinical areas) …

3. Whether there is a substantially increased risk of infection or contamination of the individual due to penetration of microbiological agents eg blood-borne viruses or other hazardous substances."

11. .5 By letter dated 12 February 2002, Dr Tohill confirmed his opinion to the respondent that he found the claimant unfit at this time.
12. .6 By letter dated 12 February 2002, the claimant wrote to the respondent in relation to the opinion of Dr Tohill already given to him as set out above; and he also sought the second opinion, which had been offered to him by Dr Tohill, as he did not consider the doctor's reasons were valid.
13. .1 By letter dated 15 February 2002, the claimant was offered a second assessment by the respondent, which he accepted and which was carried out on 21 February 2002 by Dr Lorna Rodgers, Consultant in Occupational Health at the Belfast City Hospital. She also considered, in her report to the respondent dated 25 February 2002 that the claimant was unfit at that time. Like Dr Tohill, she also examined the claimant and took a similar history from him, as appears in her notes for the examination. She found on examination "slight redness of the face, especially nasal labial folds and a few areas with a little scale in scalp; hands – minor nail changes, but skin texture good; forearm – flat patches – reddish pigmented with little scale; trunk – again lot of flat patches, little scale".

She discussed with the claimant, at length and in detail, his condition and the possible health and safety concerns. In particular, they discussed her concerns, arising from her said findings, in relation to the claimant himself, and the potential for infection, bacterial (eg MRSA) blood-borne viruses, and the need to take time off from clinical work if his skin flared up; but also her concerns, in relation to patients, and the potential for colonisation with MRSA; and if the skin was very scaly, increased potential for wound infection. She considered that at that time, as Dr Tohill had done previously, that he was unfit at that time for the post. She agreed, in evidence, that the concerns discussed by her were similar to those expressed by Dr Tohill – though she accepted that when she had examined him the patch of psoriasis on his hand had healed and was no longer broken and therefore did not raise, for her, the issue of gloves aggravating his psoriasis. She acknowledged some improvement in the claimant's condition from when seen by Dr Tohill; but she still found his condition at that time rendered him unfit for the position. She was of the opinion that the claimant had a chronic relapsing condition. She advised him to discuss with his specialist, if it would be possible to control his condition better long-term; but she recognised that it would be necessary for him to consider trading off better control of his skin condition against possible side effects of treatment. Indeed, she suspected that it might be difficult to control his condition, given its severity, on his then present treatment. She pointed out to the claimant that if his condition could be brought under control it would be possible from a medical point of view to reassess his fitness; but not for at least three months to allow time for any change in his treatment regime to take effect.

14. .2 Following Dr Rodgers' report, by letter dated 4 March 2002, the respondent informed the claimant that she had also found him unfit. The letter also advised the claimant that "Dr Rodgers advises that you may be fit in the future and to this end I have placed your name onto a waiting list for a period of one year from 17 December 2001. Please note that any further offers will be subject to a reassessment by Occupational Health".
15. .1 Following this letter, the claimant wrote to the respondent by letter dated 11 March 2002, in which it appears he raised, inter alia, the possibility of the use of a long-sleeved undergarment as personal protective clothing to prevent risk of infection, arising from the psoriasis on his arm. The respondent, in its reply dated 19 March 2002, noted that Dr Rodgers made no mention of such a garment and that the respondent would always be guided by the medical advice. The respondent again repeated what had been stated earlier, namely, that the claimant's name would be placed on a waiting list for a period of one year and should another post be arranged he would be offered a place, subject to a satisfactory pre-employment medical report.
16. .2 The tribunal is also satisfied, following his conversation with Dr Tohill and Dr Rodgers at the conclusion of their examinations and also the correspondence from the respondent, that the claimant was fully aware that it was for him to come back to the respondent, within the subsequent 12 months, if he could show that he had obtained good control of his psoriasis and that he would be then reassessed by the respondent to see if he was fit for the post. The tribunal was satisfied that he knew that it was for him to so notify the respondent and that, in the absence of same, he could not expect a reassessment to be arranged.
17. .3 The tribunal noted that, subsequent to his examination with Dr Rodgers, the claimant did in fact consult his consultant, Dr Corbett, who had been treating him for a long number of years. Despite his close involvement with his treatment over the years, Dr Corbett was not called to give evidence on the claimant's behalf; but rather the claimant relied on the evidence of Dr Eedy, who had not seen or treated the claimant before he examined him for the purposes of his report dated 23 June 2003 in connection with these proceedings. The claimant did not dispute that Dr Corbett advised that the claimant should continue on the same treatment and had not advised any other more aggressive treatment.
18. .4 The claimant did not seek any further reassessment by the respondent on the grounds that his condition was under control and he presented his originating application on 20 May 2002. The claimant was not offered employment during the currency of the said waiting list as there was no external recruitment to the post of Emergency Ambulance Person (Relief) during the said period.
19. .1 At the conclusion of the claimant's case Mr O'Reilly made an application that the claimant's case should be dismissed on the grounds that there was no case to answer, having regard to the claim made by the claimant, at its height, under the terms of the DDA. In essence, he submitted that the skin condition known as psoriasis, from which the claimant suffered at the relevant time was not, of itself, sufficient to be a disability and to make the claimant a disabled person, under the DDA. To be such a disability and to allow the claimant as a disabled person to bring a claim of unlawful discrimination under the DDA, his disability, the relevant physical impairment, had had to consist of a severe disfigurement. As set out above, he did not dispute the said impairment of the claimant consisted of such a disfigurement. However, he submitted that since the failure to appoint the claimant to the post had not been in any way due to the said severe disfigurement, but rather it was due to the skin condition, which of itself was not a disability, and which condition the respondent considered made the claimant not fit to be employed in the post. He therefore concluded the claimant could not establish any claim of unlawful discrimination under the DDA since any action by the respondent did not relate in any way to the said severe disfigurement.
20. .2 Mr Sands submitted the application should be rejected. He submitted the relevant disability remained, at all times, the claimant's skin condition known as psoriasis; and that the severe disfigurement merely meant that where there was such disfigurement it was not necessary for a claimant to prove the impairment had the severe adverse effect by virtue of the provisions of schedule 1, paragraph 3 of the DDA. Mr Sands acknowledged that if he was correct, then his client would be able to bring his claim of unlawful discrimination, using the provision in schedule 1, paragraph 3 of the DDA, in circumstances where the reason for the failure to be appointed had no relevance to the severe disfigurement, which he did not dispute, and where, but for this provision, his client could not have established he had a disability.
21. .3 The tribunal, having considered the matter, and mindful of the authority set out in Harvey on Industrial Relations and Employment Law, volume 5, section T, paragraphs 892-895 and the dicta of Kelly LJ in the case of Belfast Port Employers -v- FEC, declined to accede to the application of Mr O'Reilly at that time and decided, in light of the said authorities, the case should proceed and the respondent should call such evidence as it considered appropriate to defend the claim of the claimant. At the conclusion of the case Mr O'Reilly again repeated his application, which he had made at the conclusion of the claimant's claim. Neither counsel was able to point to any legal authority where this issue had arisen and had been determined by any other tribunal.
22. .1 The tribunal was satisfied on the facts as found by it that the claimant, at the relevant time, suffered from the skin condition known as psoriasis. This condition is a physical impairment, but of itself would not have been sufficient to allow the claimant to claim he had a disability and was thereby a disabled person since the claimant could not and did not show his said condition had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. However, the tribunal was satisfied that the claimant's said condition was a severe disfigurement; and that pursuant to the provisions of schedule 1, paragraph 3, of the DDA, as his impairment consisted of such a disfigurement it was to be treated as having the said effect. The tribunal was therefore satisfied the claimant had a disability as defined under section 1 of the DDA and was a disabled person thereunder and the tribunal therefore had jurisdiction to consider the claim. However, it was necessary for the tribunal to consider, for the purposes of the claimant's claim, the said definition of disability in greater detail.
23. .2 The tribunal found on the facts set out above that the reason for the failure of the claimant to obtain the post was not in any way related to the severe disfigurement caused by the skin condition from which he suffered, namely psoriasis, but rather related solely to the skin condition itself. This was not disputed by either party. At the heart of the issue raised by the respondent, in the tribunal's view, was the precise nature of the disability in light of the said definition of disability under the DDA. Mr Sands did not dispute, in the course of his submissions, that if the tribunal concluded that the relevant aspect of the impairment was the severe disfigurement, and not merely the psoriasis, the claimant's claim under the DDA must fail, as the reason for the failure to obtain the post was in no way related to the severe disfigurement. In light of this, the tribunal was satisfied that it should firstly consider and determine this issue before considering further the claim of the claimant.
24. .3 The condition of psoriasis, which is a skin condition, clearly involves a physical impairment, but of itself would not be a disability since it would not normally have the substantial and long-term adverse effect on the claimant's ability to carry out normal day-to-day activities, as required under section 1 of the DDA. If the skin condition was of such a severe nature that it had such an effect then clearly the skin condition of itself could be a disability. In this case, on the facts as found by the tribunal, there was no such evidence. The only way the claimant could seek to bring his claim under the DDA was to rely on the provisions under schedule 1, paragraph 3 relating to severe disfigurement. Under schedule 1, paragraph 3, set out above, where an impairment consists (tribunal's emphasis) of a severe disfigurement it is treated (tribunal's emphasis) as having the said adverse effect. Thus, where the impairment consists of a severe disfigurement, but only in those circumstances, it is not necessary for the said adverse effect to be proved, as would otherwise have been necessary in order to satisfy the definition of disability and/or disabled person.
25. .4 In the tribunal's view, having regard to the wording, as found in schedule 1, paragraph 3 of the DDA, to which section 1 of the DDA is subject, the impairment to which the DDA is attempting to give protection to is an impairment which consists of a severe disfigurement, but which does not of itself otherwise satisfy the relevant definition of disability. In the tribunal's view, the use of the word "consists" in schedule 1 paragraph 3 is of particular significance and relevance in determining the nature of the disability, where such a disfigurement is relevant to the claim. "Consists" is defined in the Concise Oxford English Dictionary as "to be composed of", "to have as an essential feature". It is to be noted not all such severe disfigurements are to be considered a disability. Under regulations made under schedule 1, paragraphs 2 and 3 of the DDA, disfigurements, for example, relating to tattoos and body piercing are not to be treated as having the said necessary effect and therefore to be a disability. The DDA is not designed to protect all persons who suffer from any type of physical or mental impairment. Clearly, in the view of the tribunal, Parliament intended that persons who suffered such an impairment, by reason of their severe disfigurement, were to be protected; but Parliament equally recognised that, if it was to do so, it had to provide in these particular circumstances the special provisions of schedule 1, paragraph 3 of the DDA, which meant it was not necessary for a person whose impairment consisted of the severe disfigurement to also prove it had the necessary adverse effect on his ability to carry out normal day-to-day activities. The claimant had a physical impairment, namely his skin condition, known as psoriasis. As set out above, that would not, of itself, have satisfied the definition of disability. What allowed it to satisfy the definition was the severe disfigurement. In those circumstances, the tribunal was satisfied, and so concluded, the essential feature of the impairment was the said severe disfigurement. The essential feature of the said impairment was therefore not the fact of the skin condition itself.

Since the reason for the failure to obtain the post was in no way related to that severe disfigurement, but rather to the skin condition itself, then in the tribunal's view, as recognised by Mr Sands, the claim must fail. Clearly, if the reason had related to the said severe disfigurement then the tribunal would have had to make further relevant findings of fact in relation to whether the claimant had been unlawfully discriminated against pursuant to section 5 of the DDA itself. In light of its findings the tribunal does not consider it necessary or appropriate to do so.

26. .0 The tribunal therefore dismisses the claim of the claimant on the grounds that he has not established that he has been unlawfully discriminated against by the respondent contrary to the DDA.

Chairman:

Date and place of hearing: 15 September 2004, 16 September 2004, 9 December 2004, 10 December 2004, 19 January 2005.

Date decision recorded in register and issued to parties: