Cosgrove v Northern Ireland Ambulance Service
The Disability Discrimination Act 1995 (DDA) extends to people who are severely disfigured. However, in Cosgrove v Northern Ireland Ambulance Service (2007, IRLR 397), the Northern Ireland Court of Appeal said that the term “disfigurement” in the legislation referred only to the cosmetic aspect of the condition and nothing else.
Basic facts
In May 2001 Mr Cosgrove successfully applied for a post described as a relief emergency ambulance person. However, when he went for a medical in February 2002, he was deemed unfit because of his psoriasis. The doctor said that exposure to irritants could aggravate his condition, he would face an increased risk of infection and there was a cross-infection risk for patients. A second doctor agreed with this assessment.
Mr Cosgrove was put on a waiting list for a year in case his condition improved, but no jobs came up in that time. As a result Mr Cosgrove claimed he had been discriminated against under the DDA. The Ambulance Service agreed that he was a disabled person but said that it had not discriminated against him.
Relevant law
Section 1(1) of DDA states:
“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.”
Paragraph 3 of Schedule 1 states:
“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.”
Tribunal decision
The tribunal decided that Mr Cosgrove had an impairment as referred to in paragraph 3 of Schedule 1 and as he had a severe disfigurement, he did not need to satisfy the rest of the definition. That meant he did not have to show that his condition had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
However the tribunal agreed with the Ambulance Service that the term “impairment” in this case was restricted “to the disfiguring aspect of the condition, and not the psoriasis in all its aspects.” In other words, it agreed that the Ambulance Service had refused him a job, not because of the disfigurement, but because of the risk of infection or cross-infection. It had not, therefore, discriminated against him under the DDA.
Mr Cosgrove appealed
Decision of Northern Ireland Court of Appeal
The Court of Appeal said that the key issue was whether paragraph 3 of Schedule 1 covered Mr Cosgrove’s psoriasis in all its forms, or whether it was restricted to the severe disfigurement that it caused.
It made clear that “not every form of disability is protected by the legislation. It must either be of sufficient severity to cause a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities, or it must consist of a severe disfigurement.”
The reason that disfigurement is protected is because people at risk of being refused work or who are disadvantaged in some other way at work because of their appearance, require equivalent protection to people who cannot carry out normal day-to-day activities. The Court of Appeal said that this special status reflects “the increased consideration that it is felt should be accorded this group on account of their disfigurement “
It concluded that, in this case, Mr Cosgrove did not get a job because the Ambulance Service judged that he was at risk of infection and that his condition carried the danger that he would infect others. That had nothing to do with his disfigurement as such. It concluded therefore that the impairment referred to in paragraph 3 related to the cosmetic aspect of the condition and nothing else and Mr Cosgrove had not been discriminated against on that basis.