Under the Equality Act 2010 it is unlawful for employers to discriminate against disabled employees. The first hurdle for any employee alleging disability discrimination is to establish that they are ‘disabled’ under the Act.
The Act defines a disability as a physical or mental impairment which has a substantial and long term adverse effect on an individual’s ability to carry out normal day to day activities. Therefore, one of the key questions when applying this definition is what amounts to a ‘normal day to day activity?’
In the case of Banaszczyk v Booker the Employment Appeal Tribunal (EAT) found that a back condition amounted to a disability, in part because lifting and loading heavy cases onto a pallet truck as part of the Claimant’s job was deemed to be a ‘normal day to day activity’.
The Claimant was a picker in a distribution centre. His job was to lift heavy cases (each weighing up to 25kg) and load them onto pallet trucks. During his employment, the Claimant developed a back condition and it was accepted that this was long term. The Claimant’s back condition meant that, although he could still lift and load the cases, he was unable to carry out his role at a sufficient speed. The Claimant was therefore dismissed on the grounds of capability. The Claimant lodged a claim of unfair dismissal and disability discrimination and, before those claims could proceed, a preliminary hearing was held in order to determine whether the Claimant had a disability. The Employment Tribunal found that the requirement to lift and load heavy cases as part of the Claimant’s role was not a normal day to day activity. As the Claimant’s back condition did not prevent him from doing the things that people do on a regular basis, such as shopping, travelling, driving, eating and sleeping, it could not be said to amount to a disability.
The EAT disagreed with this finding; in particular it confirmed (in line with a previous European Court of Justice decision) that the concept of day to day activities must include the skills required for work. In some instances work related activities might be so highly specialised that they could not be regarded as day to day activities; the example given was a watch repairer carrying out delicate work with highly specialised tools. However; large numbers of employees in warehouses and distributions centres across the UK are employed to do the very task that the Claimant was required to carry out. It would not be in keeping with the spirit of the legislation, which is to overcome the disadvantages disabled employees experience in the workplace, if the concept of day to day activities was defined too narrowly. As such, the EAT found that lifting and loading heavy cases was a normal day to day activity and that the Claimant was disabled as a result.
This decision has confirmed the principle that the concept of normal day to day activities can include activities which only take place at work. Other examples have included taking career-related examinations, night working and standing for long periods.
This case has also cast doubt upon the reliability of part of the Guidance which accompanies the Equality Act and which helps to define, in some detail, the concept of a normal day to day activity. The Appendix to the Guidance also provides a non-exhaustive list of factors which could reasonably be expected to have a substantial adverse effect on normal day to day activities as well as a list of factors which are unlikely to have that effect. Two of the factors which the Guidance cites as probably not having that effect are an inability to reach typing speeds standardised for secretarial work and an inability to move heavy objects without assistance or mechanical aid. In light of this case, it is likely that this aspect of the Guidance can no longer be safely relied upon, except possibly in the context of a very unusual occupation or profession. Whilst the examples given in the Guidance are intended to be illustrative only, this does demonstrate the difficulties an employer can face when attempting to apply the definition of disability to its own staff.
So what does this mean?
All of this means that an employer should probably err on the side of caution when determining the question of disability. It is good practice for employers, in circumstances where an employee has an underlying condition that has an impact on their ability to perform their role, to consider whether it is feasible to make any adjustments to assist them, irrespective of whether they would be considered to be disabled under the Equality Act. This then means that an employer is best placed to defend any claim of disability discrimination and indeed any claim for unfair dismissal, if the employee is eventually dismissed for capability/ill health reasons.