Banaszczyk v Booker UKEAT/01232/15/RN
The Equality Act 2010 defines disability as any physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities (including general work-related activities).
The Government Equalities Office has published “Guidance on matters to be taken into account in determining questions relating to the definition of disability” which contains examples of normal day-to-day activities.
In Chacon Navas v Eurest Colectividades (2006), and Ring v Dansk Almennyttigt Boligselskab(2013) , the ECJ said that the EU Equal Treatment Directive should be interpreted as referring to a limitation “which hinders participation in professional life”.
The Claimant was a picker in a distribution centre. His job required him to select and load cases of goods weighing up to 25kg by lifting them manually and loading them onto a pallet truck. The Respondent expected employees to pick 210 cases per hour (the “pick rate”) which had been agreed with a recognised trade union. The minimum acceptable standard was 85% of the pick rate.
The Claimant was injured in a car accident in February 2009 and later developed back problems. Over several years he took periods of sick leave.
In September 2012 he was off sick once more and the Claimant told the Respondent’s occupational physician (OP) that he felt he could only manage the target pick rate on smaller items. The OP wrote to the Respondent in October 2012 to say the Claimant had a long-term back problem, was generally unable to reach his target picking speed, and was unlikely to improve in the foreseeable future. The Claimant told the Respondent he was fit to work but this particular work was too heavy for him. At this point he was reaching 85% of the pick rate half the time; the rest of the time he was only reaching 70-80%. The OP saw the Claimant again in February 2013 and concluded that there was no realistic prospect he would increase his picking speed and more likely than not that there would be more absences in the future because of his back. The Claimant was dismissed in July 2013 on grounds of incapability, and he brought claims for unfair dismissal and disability discrimination.
At a preliminary hearing, the Employment Judge held that the Claimant did not have a disability because, although he had a long-term physical impairment, it did not have a substantial effect on his carrying out normal day-to-day activities.
The EAT (HHJ David Richardson) upheld the Claimant’s appeal. There was no dispute that the Claimant had a long-term physical impairment which had an adverse effect on his work, but were his activities at work “normal day-to-day activities”?
What does the Government Guidance say?
The Government Equalities Office’s Guidance says (D4) that “The term ‘normal day-to-day activities’ is not intended to include activities which are normal only for a particular person, or a small group of people. In deciding whether an activity is a normal day-to-day activity, account should be taken of how far it is carried out by people on a daily or frequent basis. In this context, ‘normal’ should be given its ordinary, everyday meaning.” However (paragraphs D8-10), some work-related activities are so specialised that they are not normal day-to-day activities: for example, watch repairers using specialised tools or professional pianists. Many types of specialised work-related or other activities may still involve normal day-to-day activities such as record keeping or invoice preparation. Paragraph B2 states: “The time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time it might take a person who did not have the impairment to complete an activity.”
The Appendix to the Guidance sets out an illustrative and non-exhaustive list of factors which might reasonably be regarded to have or not have a substantial adverse effect on normal day-to-day activities. The examples given below include those which might be particularly relevant to work activities:
Click here to view the table.
The Claimant’s work activities were undisputed: he was required to lift and move goods weighing up to 25kg, partly manually and partly with a pallet truck. The EAT held that “This is, in the context of work, a normal day-to-day activity: no one with any knowledge of modern UK life working life could doubt that large numbers of people are employed to work lifting and moving cases of up to 25kg across a range of occupations, including in particular occupations concerned with warehousing and distribution.”
HHJ Richardson said, “It is to my mind essential, if disability law is to be applied correctly, to define the relevant activity of working or professional life broadly: care should be taken before including in the definition the very feature which constitutes a barrier to the disabled individual’s participation in that activity.” The “pick rate” which the Claimant was required to reach was not part of the activity, but rather a particular requirement of the employer of the manner and speed of performance of that activity. The fact that a certain rate was required did not stop the activity from being a “normal, day-to-day” one.
Having concluded that his picking activities were “normal, day-to-day” activities, the EAT then considered whether the impairment was substantial and concluded that from the OP’s reports it was: “no other reading of his report is feasible”. The Claimant was significantly slower than other employees so, in accordance with B2 of the Guidance, it was clear that his significantly slower rate of carrying out the activity was a substantial adverse effect.
What to take away?
The case is a helpful example of how the concept of “normal, day-to-day activities” can include those which are done at work. It follows the EU case law such as Chacon which confirm that a condition which limits a person’s ability to carry out activities at work can be classed as a disability.
As stated above, the Government Equalities Office Guidance is useful – but not infallible. InRing v Dansk Almennyttigt Boligselskab (2013), which postdates the Guidance, the ECJ said, “the concept of ‘disability’ must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”. “May hinder” is just that – a hindrance, not the impossibility of exercising such an activity. The EAT expressed doubt that paragraphs D8-10 of the Guidance are right, given Ring, but did not go further. It would therefore be sensible to apply these paragraphs of the Guidance with caution.