In the recent case of Chief Constable of Dumfries & Galloway Constabulary v Adams, the EAT gave judgment on what constituted a normal day-to-day activity for the purposes of defining disability under the Disability Discrimination Act.
The Claimant was a policeman who was at times required to work nightshifts. He suffered from ME, and had mobility problems between about 2am and 4am on those occasions when he was required to work nights.
The employment tribunal found that the Claimant was disabled and the Respondent appealed that decision. They argued that that the Claimant was not disabled and in particular that the tribunal should not have found that he was carrying out “normal day-to-day activities” at the times when he experienced mobility problems.
The Disability Discrimination Act (DDA) provides that a person has a disability 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” (our emphasis).
The Claimant argued that his impairment did cause an adverse effect on his ability to carry out normal day-to-day activities. He pointed to the fact that between 2am and 4am, his walking slowed and he had difficulty with stair climbing. He also had difficulty with driving home at the end of nightshifts and with undressing when he got home. He said that all those activities were normal for a large number of people, and that many occupations required people to be at work at that time of night.
The Respondent, on the other hand, argued that it could not be the case that to carry out those activities at work between 2am and 4am was to carry out normal day-to-day activities. The first reason they gave for their argument was that the Claimant, working as a policeman on a nightshift, was doing a specialised job. Secondly, they argued that, even putting to one side the Claimant’s particular occupation, in order to show that they were normal day-to-day activities it would have to be proved that nightshift working was normal for the majority of people in the UK, and not just for many – and that this was not the case.
Neither of the Respondent’s arguments were successful before the EAT and the original tribunal decision that the Claimant was disabled was upheld. The EAT held that, although there may well be occasions on which the work done by a policeman is specialist and may indeed fall outside the definition of “normal day-to-day activities”, in this instance the Claimant was “carrying out very ordinary physical activities at work at a time of night when there are many other people in other forms of employment doing the same thing”.
In relation to the second argument, they found that the activity need not be carried out by the majority of the population in order for it to be a normal day-to-day activity. They found that because nightshift working was common in the UK, there were “enough people working on nightshifts for working at 2am to 4am to be a normal day-to-day activity”, and in particular that the activities that the Claimant was carrying out were the “very ordinary activities of walking, stair climbing, driving and undressing”.
This case serves as a reminder to employers of the breadth of the meaning of “normal day to day activities”: it is not necessarily that difficult a definition for claimants to meet. Even where the relevant activities are only carried out at work; where the job is a specialised one; where those activities are only carried out at night; and/or where the activities are carried out by a minority of the population only, they can still fall within the definition of “normal day-to-day” activities.
In light of the above, employers are advised to err on the side of caution and not to readily assume that an individual is not disabled, particularly given the uncapped awards that can be made at tribunal for breaches of the DDA.