The Employment Appeal Tribunal (EAT) has, in the case of Aderemi v London & South East Railway, provided some guidance useful to all employers on the legal test of disability. Mr Aderemi was a station attendant whose role involved him being on his feet for most of the day. He developed back pain which precluded this. He was subsequently dismissed on the grounds of ill-health capability after no suitable alternative work could be found. An employment tribunal dismissed his claims for unfair dismissal and disability discrimination, and in particular found that Mr Aderemi’s back condition was not a disability as there was no substantial adverse effect on his day-to-day activities. In particular, the tribunal listed several things Mr Aderemi could do despite his condition.

The case was appealed to the EAT which stated that the approach of the employment tribunal had been entirely wrong and that the focus should have been on the activities Mr Aderemi could not do. For example, he could not stand for periods of thirty minutes or so and could not bend or lift. The EAT clearly felt that the tribunal had not taken enough consideration of these issues in its determination of the issue of disability.

The EAT remitted the case to the employment tribunal for a re-hearing.

This case is therefore a reminder that when determining whether an employee is disabled for the purposes of the Equality Act, employers should ensure that they take into account the tasks an employee says they cannot do, as opposed to focussing on the tasks they can do. In practical terms, employers are best advised to err on the side of caution when presented with an employee with a medical condition, and try to accommodate adjustments requested so far as is reasonable.