Background
A person is disabled for the purposes of the Disability Discrimination Act 1995 (the DDA) if he or she has a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. Much case law has built up around various elements of the test of disability under the DDA.
The Courts have recently considered Schedule 1, paragraph 3(1) of the DDA, the effect of which is that an impairment consisting of a severe disfigurement is deemed to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities.
Facts
Mr Cosgrove (C) applied, and was turned down for, the post of ‘emergency ambulance person’ with the Northern Ireland Ambulance service (NIAS). Following a pre-employment medical, the doctor found him to suffer from psoriasis of such severity as to render him unfit for the post. Exposure to allergens or irritants in the course of employment could aggravate his skin condition, his psoriasis would place him at an increased risk of infection and there was a cross-infection hazard for patients.
Tribunal’s findings
C complained of disability discrimination to a tribunal. It concluded that the impairment was one which consisted of severe disfigurement but which would not otherwise satisfy the relevant definition of a disability, ie one which had a substantial and long-term adverse effect on the ability of the person to carry out normal day-to-day activities.
What had led to the refusal of C’s employment was not his disfigurement, but the propensity of psoriasis to become infected or to cause cross-infection. C appealed to the Northern Ireland Court of Appeal (NICA).
NICA Findings
C’s differential treatment had not arisen as a result of his disfigurement, but because it was judged that he was at risk of infection and that his condition carried the danger that he would infect others. Those conditions had nothing to do with him being disfigured. C’s appeal was dismissed.
Comment
On the facts, C’s treatment did not arise as a result of his disfigurement and so his disability discrimination claim failed. This case makes it clear that even where an employee has an impairment consisting of a severe disfigurement, he or she will not be able to rely on the specific ‘deeming’ provisions contained in the DDA if the reason for the differential treatment is something other than the disfigurement itself.