McCosh vs DGS Service Solutions LTD,David Huxley
| Jurisdiction | Northern Ireland |
| Judgment Date | 14 December 2018 |
| Docket Number | 06492/17IT |
| Court | Industrial Tribunal (NI) |
| Respondent | DGS Service Solutions LTD,David Huxley |
THE INDUSTRIAL TRIBUNALS
CASE REF: 6492/17IT
CLAIMANT: David McCosh
RESPONDENTS: 1. DGS Service Solutions LTD
2. David Huxley
DECISION
- The unanimous decision of the tribunal is that the claimant was not at the relevant time a disabled person for the purposes of the Disability Discrimination Act 1995. His claim in that regard is therefore dismissed.
- The unanimous decision of the tribunal is that the respondents made unlawful deductions from the wages of the claimant in their calculation of his holiday pay. The respondents are therefore ordered to pay to the claimant the sum of £547.20.
- The unanimous decision of the tribunal is that the respondents did not make an unlawful deduction from the wages of the claimant by deducting the cost of his security operative’s licence. That aspect of his claim is therefore dismissed
Constitution of Tribunal:
Employment Judge: Employment Judge Browne
Members: Dr C Ackah
Mr T Carlin
Appearances:
The claimant appeared and represented himself.
Both respondents were represented by Mr David Huxley.
ISSUES AND EVIDENCE
- The second named respondent is the owner of the first named respondent.
- The claimant was employed by the respondents as a security guard/control room operator from 1 September 2016 until his resignation on 19 September 2017. He worked an average of 42 hours per week, being 36 hours one week and 48 hours the next. His hourly rate was £7.60 per hour.
- The claimant raises two issues as the basis for his claim.
- The first is that the respondents failed to make reasonable adjustments for him in relation to his back condition, which he claims at the material time was a disability for the purposes of the Disability Discrimination Act 1995.
- On the claimant’s case, the appropriate reasonable adjustment would have been to permit him to work permanently in the Control Room of its premises, rather than also having to patrol the grounds on foot.
- The second claim is that the respondents, in their calculations of the rate of holiday pay to which he was entitled, used the wrong formula.
- The claimant, being contractually entitled to twenty-eight days’ holiday per year, argued that they ought to have calculated it on the basis of twenty-eight days’ holiday at twelve hours per shift. Instead, as a result of the respondents’ formula, the claimant’s holiday pay was paid at 8.4 hours per day, thereby reducing his holiday pay entitlement by 3.6 hours per day taken, totaling 18 hours’ less pay for the periods claimed.
- The respondents’ case was that they had properly offered the claimant a choice between either 19.6 days’ leave at twelve hours or 28 days’ leave at 8.4 hours.
- The claimant also sought to claim a refund on £220.50 deducted from his pay by way of the balance of a “loan” from the respondents, to cover the cost of his security certificate, without which he could not have worked in the capacity for which he was employed.
- As regards the disability claim, the claimant gave oral evidence of his ongoing back pain, confirmed by two written medical reports, dating back to early 2017, namely, during his employment by the respondents one of those reports simply related the contents of the other as regards a lumbar scan. That scan showed that the claimant had disc protrusion “with potential irritation of the…nerve roots”.
- The claimant’s physiotherapist stated that he then discussed the possibility of a nerve root injection, but that the claimant at that time was able to manage his symptoms of lower back pain, with hip pain and intermittent pain down the back of his calf by using Cocodamol or Naproxen.
- There was also a letter from his GP, dated 12 December 2017, in effect conforming the contents of the two earlier medical reports. The letter referred to him being medically unfit for work due to stress. There was also reference to his ongoing back pain, which “markedly affects his mobility”, but was unclear as to the source of this information, other than that reported to his doctor by the claimant himself.
THE DEFINITION OF DISABILITY AND CONCLUSIONS
- The meaning of “disabled person" is set out in Section 1 of the Disability Discrimination Act 1995 (“the DDA”) which provides that:-
“(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.”
Section 2 of the DDA provides in relation to past disabilities:-
“(1) The provisions of this Part and Parts II and III apply in relation to a person who has had a disability as they apply in relation to a person who has that disability.
...
(4) In any proceedings under Part II or Part III of this Act, the question whether a person had a disability at a particular time ("the relevant time") shall be determined, for the purposes of this section, as if the provisions of, or made under, this Act in force when the act complained of was done had been in force at the relevant time.
...
(5) The relevant time may be a time before the passing of this Act”.
- Section 3 of the DDA enables the Secretary of State to issue guidance about the matters to be taken into account in determining a number of issues likely to arise in disability discrimination cases, including whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities; or whether such an impairment has a long-term effect.
- Section 3(3) of the DDA provides that a tribunal or court determining, for any purpose of this Act, whether an impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities, shall take into account any guidance which appears to it to be relevant.
- Paragraph 4(1) of Schedule 1 to the DDA provides that 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 the risk of physical danger.
- The tribunal considered the following case law:- Morgan v Staffordshire University [2002] IRLR 190 EAT; Hospice of St Mary of Furness v Howard [2007] IRLR 944; Abadeh v British Telecommunications PLC [2001] IRLR 23 EAT; Goodwin v Patent Office [1999] ICR 302 1999 IRLR 4 EAT; ChacÓn Navas v Eurest Colectividades SA [2006] IRLR (ECJ), C-13/05.
- In deciding whether a person has a disability within the meaning of the Act, the tribunal must address the four questions set out in the case of Goodwin v The Patent Office 1999 IRLR 4, namely:-
Does the claimant have an impairment which is either mental of physical?
Does the impairment affect the claimant’s ability to carry out normal day-to-day activities in one of the respects set out in Schedule 1 Paragraph 4(1) of the 1995 Act and does it have an adverse effect?
Is the adverse effect substantial?
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