Ross v Precision Industrial Services Ltd & Anor  (Preliminary Hearing)  (4 December 2003)
THE INDUSTRIAL TRIBUNALS

CASE REF:	1062/03

APPLICANT: 	William Ross

RESPONDENTS:	1.	Precision Industrial Services Limited
			2.	Du Pont (UK) Ltd

DECISION ON A PRELIMINARY ISSUE

The decision of the tribunal is that there was no disability within the meaning of Section 1 of the Disability Discrimination Act 1995.  Further the tribunal finds that the applicant was not at any material time employed by the second named respondent, but that the applicant was a contract worker employed at the second named respondent’s plant under a contract between the first and second named respondents.

Appearances:

The applicant was represented by Mr Mark Reid, Solicitor of Law Centre (NI)

The respondents were represented by Mr Philip Babington, Solicitor of Babington and Croasdaile Solicitors.

1.	There were two issues before the tribunal for  preliminary hearing:-

A.	Whether there was a disability within the meaning of Section 1 of the Disability Discrimination Act 1995?

B.	(i)	Was the applicant at any material time employed by the second
named respondent, having regard to the terms of Section 68 of the Disability Discrimination Act 1995?

(ii)	If not, was the applicant at any material time a contract worker,
having regard to the terms of Section 12 of the Disability Discrimination Act 1995?

(iii)	If not, has the tribunal jurisdiction to determine any claim of disability discrimination by the applicant against the second named respondent?

2.	The tribunal considered question B first.  It was agreed by the parties that at all material times the applicant had been employed by the first named respondent (“Precision”), which had a contract with the second named respondent (“Du Pont”) to supply employees in various parts of the Du Pont site at Maydown.  While Du Pont could agree or not to a particular person working in a given area of the factory and pay was determined by the contract between Du Pont and Precision, all other terms and conditions of employment were determined by the contract between Precision and the applicant.

3.	The parties were agreed, and the tribunal finds, that the applicant was not an employee of the second named respondent.  The next point to consider is whether the applicant was a contract worker under the provisions of Section 12 of the Disability Discrimination Act 1995 (“the 1995 Act”).  The relevant parts of that section provide as follows :-

“ 12.(1)  It is unlawful for a principal, in relation to contract work, to discriminate against a disabled person –

(a)	in the terms on which he allows him to do that work …
or
(d)	by subjecting him to any other detriment.”

(6)	In this Section –

“principal “ means a person (“A”) who makes works available for doing by individuals who are employed by another person who supplies them under a contract made with A;

“contract work “ means work made so available ;

“contract worker “ means any individual who is supplied to the principal under such a contract.”

In the light of these provisions and in the light of the facts agreed by the parties, that the applicant was employed by Precision and carried out work for Du Pont under a contract between Precision and Du Pont, the tribunal finds that the applicant was indeed a contract worker within the meaning of Section 12 of the Disability Discrimination Act 1995.  In the light of this, there is no need to reply to question B (3).

4.	The tribunal then considered question A, whether there was a disability within the meaning of Section 1 of the Disability Discrimination Act 1995.  Section 1 of the 1995 Act provides at Sub-Section 1 as follows :-

“1. –(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. “

Schedule 1 supplements Section 1 and provides clarification of it.  An impairment is to be treated as long-term if it has lasted for a period of at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected (Schedule 1, para.2(1) ).

Under Schedule 1, para.4(1) , an impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following :-

a.	mobility;
b.	manual dexterity;
c.	physical co-ordination;
d.	continence;
e.	ability to lift , carry or otherwise move everyday objects;
f.	speech, hearing or eyesight;
g.	memory or ability to concentrate, learn or understand ; or 
h.	perception of physical danger.

5.	It was the applicant’s case that he suffered from a physical impairment, Seborrhoeic dermatitis, which had a substantial and long-term effect on his ability to carry out normal day-to-day activities in two ways, namely his manual dexterity and his ability to lift, carry or otherwise move everyday objects. 

6.	The tribunal makes the following findings of fact .  The applicant had been employed by Precision since March 1994 and had worked since that time at the Du Pont plant at Maydown near Londonderry in the inspection and packing area of the plant.  He had an excellent attendance record and had not experienced any difficulty in carrying out his work.  This involved packing and carrying boxes of product, tying off filaments on cakes of Lycra and distributing work to colleagues, using computerised systems and inspecting the finished product.  He sometimes wore gloves for work, but could not wear gloves for every task.  He developed Seborrhoeic eczema in 2001.  At home, he did not do any household tasks around the home because contact with detergents and water irritated his hands.  He said he did not do supermarket shopping because he could not lift bags of shopping as the plastic carrier bags exacerbated cracks on his hands and made them sore and painful.  Although he could tie off fine Lycra threads at work, he said he could not tie his own shoelaces and could not lift cooking pots.  He had difficulty with buttons when dressing and with toileting.

7.	The applicant  was referred to Dr Podmore, Consultant Dermatologist, by his General Practitioner.  Dr Podmore prescribed laser treatment for the applicant as well as creams and lotions, although no separate, specific treatment or creams for his hands were prescribed.  She saw the applicant nine or ten times between his first referral and the date of the tribunal.

8.	In September 2001, the applicant applied to be considered for shift work which would have involved him going into the spinning department at Du Pont, where there is a warm, humid atmosphere which would exacerbate his skin condition.  He asked to be allowed to work shifts, but not to have to go into the spinning area as the warm atmosphere exacerbated his eczema.  He gave his employers a report from Dr Podmore dated 20 September 2001, which indicated that Mr Ross suffered from Seborrhoeic eczema.  The last sentence of the report reads :

“He (the applicant ) is currently working in an environment which is not really proving troublesome to him but if he changed to a warmer working environment he would be likely to suffer an exacerbation of his condition which was certainly fairly severe at his previous episode. “

9.	At the request of Du Pont, the applicant also saw Dr Rodney Gamble, the company’s doctor, who noted the skin condition and reported that the applicant was “fit for shifts but not for work in spinning.”

10.	The upshot of this was that the applicant was not graded as a spinning operative assistant (S O A) when there was a question of redundancies in early 2003, and was instead redeployed as a pack/ship operator, at a different, lower rate of pay.  He claimed he had been unfairly and unlawfully discriminated against by his employer.

11.	In a report of 2nd December 2003 prepared for the hearing, Dr Podmore was specifically asked to comment on the effect of the applicant’s condition on his ability to carry out day-to-day activities.  She writes:-

“Mr Ross suffers from severe extensive Seborrhoeic eczema, which tends mainly to affect his face, trunk and back.  It can occasionally affect the hands and would also predispose him to an irritant contact dermatitis on his hands.  He tends to flare in a warm, dusty environment and it would also flare if he was under stress or under pressure……….If it affected his hands it could cause hacking, pain and discomfort which would certainly effect (sic) his manual dexterity.  If it affected his hands, it would be difficult for him to carry every day objects……”  She did not mention any actual problems with the applicant’s hands.

12.	When the applicant attended at the hearing, there was no hacking evident on his hands and only slight redness, but no other signs of irritation.  This is in spite of the fact that many people would find attendance at a court or tribunal a stressful experience.

13.	The tribunal has considered carefully the evidence before it, the relevant case law and the Government Guidance on matters to be taken into account in determining questions relating to the definition of disability (“the Guidance”).

14.	The tribunal has considered the four questions which must be considered in deciding whether a person has a disability within the meaning of Section 1 of the 1995 Act, as set out in Goodwin v The Patent Office[1999] IRLR 4 .  These are :

(a)	Whether the applicant has an impairment which is either mental or physical?

The applicant suffers from Seborrhoeic eczema which is a clinically recognised condition of which definitions were provided to the tribunal and this was confirmed by the medical reports before the tribunal.  The panel finds that the applicant suffers from a physical impairment.

(b)	Does the impairment affect the applicant’s ability to carry out normal day-to-day activities in one of the respects set out in Schedule 1 para 4 (1) of the 1995 Act and does it have an adverse effect?

(c)	Is the adverse effect substantial?

15.	The tribunal has considered these two questions together because the answers to them draw on the oral evidence before the tribunal and the medical reports produced.  While the tribunal must make a finding of fact on these questions, it may consider the oral evidence given in the light of the medical evidence produced on behalf of the applicant and the definitions of the applicant’s condition.  The applicant gave the impression in his evidence that the eczema was an ongoing problem and then qualified his answers to some questions about his condition by saying “When it is bad….” or “When it flares up…..”  This is consistent with Dr Podmore‘s comment about Mr Ross’ “previous episode “ of eczema, suggesting it is not an ongoing problem and she refers in her report of 2nd December 2003 to the fact the condition would “flare” in a warm dusty atmosphere.

16.	The applicant concentrated on the effect eczema on his hands had on his dexterity and his ability to lift objects.  Dr Podmore did not mention the applicant’s hands at all in her first report and in her second, says the condition “can occasionally affect the hands“.  She goes on to set out the effect the condition would have “If it affected his hands…..”(see para 11 above).  The tribunal finds that the applicant’s eczema was a sporadic condition which flared up from time to time.  According to the Guidance, such a recurring condition can constitute a disability with the meaning of the 1995 Act, even if it only recurs for a short period.  If the condition, with treatment, allows an individual to carry on normal activities, it can still qualify as a disability if it would have a substantial, adverse impact if left untreated (e.g. diabetes).  It seems that in this case, a flare up of eczema may have had an adverse impact on the applicant’s ability to carry out everyday activities, if left untreated and if it affected his hands.  Dr Podmore’s reports do not bear out the applicant’s evidence about his hands: the first report makes no mention of the applicant’s hands and the second says that the condition “occasionally” affects his hands.  

17.	In the applicant’s case, his work environment did not cause any difficulties and Precision did not ask him to work in the spinning area, which could have led to a flare up in his eczema.  The tribunal is not persuaded by the applicant’s evidence about the impact his condition had on his ability to carry out normal activities outside of work.  He was able to tie off fine Lycra filaments at work, but maintained he could not tie his shoelaces.  He said he could not lift plastic shopping bags, but could lift cakes of Lycra product.  He was sufficiently dextrous to be able to operate a computer, but said he could not lift a teacup with one hand or cooking pots.  Being able to carry out one of these tasks is not consistent with being unable to carry out the other.  

18.	The tribunal therefore finds that although the general condition of Seborrhoeic eczema could have an adverse impact on a person’s ability to carry out normal day-to-day activities, it does not believe that the extent to which this condition affected the applicant’s hands is established to show a substantial, adverse impact on his ability to carry out normal day-to-day activities.  

19.	(d)	Is the adverse effect long term?  It is not necessary to reply to this
question, given the reply to questions (b) and (c) above.  

20.	The tribunal replies to the questions posed to it as follows :-

A.	There was no disability within the meaning of Section 1 of the Disability Discrimination Act 1995.

B.	(1)	The applicant was not employed by the second-named
respondent at any material time.

(2)	The applicant was a contract worker under the provisions of Section 12 of the Disability Discrimination Act 1995.

(3)	It is not necessary to reply to this question, given the reply to question (2) above.

Chairman:

Date and place of hearing : 4 December 2003, Limavady

Date decision recorded in register and issued to parties: