The Equality Act 2010 provides protection against discrimination which relates to certain "protected characteristics".
One of the protected characteristics is disability. Disability is defined 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.”
Guidance has been issued about measures to be taken into account in deciding whether an individual passes the statutory test for disability.
The adverse effect is a substantial effect that is not minor or trivial. Normal day-to-day activities are anything which is not abnormal or unusual. When considering disability, the focus should always be upon what the person cannot do, not on what they can do. In that regard, disability should be read and understood as referring to a limitation which hinders participation in professional life.
Activities only performed whilst at work may constitute normal day-to-day activities under the Equality Act 2010 if there are many other people and other forms of employment doing the same thing.
Background - lifting and moving
In the present case (Banaszczyk), the claimant was a workhouse operative employed as a "Picker". This involved the claimant moving goods weighing up to 25 kilos manually or by using a pallet truck. The claimant was injured in a car accident and began to suffer from back pain.
An Occupational Health report concluded that as a result of the car accident, the claimant was unable to comply with the required "pick rate" of 210 cases per hour. The minimum requirement was for 85% of the pick rate. The respondent noted that the claimant could manage that for half of his time, but only 70-80% for the remainder. The claimant was dismissed on grounds of capability in July 2013.
The claimant brought proceedings at the Employment Tribunal; including disability discrimination.
As a preliminary issue, a hearing was held to determine whether or not the claimant could be deemed as "disabled" for the purposes of the Equality Act 2010.
The Employment Tribunal held that the claimant was not disabled. The claimant appealed to an Employment Appeal Tribunal.
Judgement of the EAT
At the EAT, the employment judge was critical of the Employment Tribunal.
In particular, it was found that the claimant's normal day-to-day activities were undisputed. He was a warehouse operative lifting heavy goods in part manually and in part by the use of a pallet truck.
In the context of work, this was a normal day-to-day activity. No-one with any knowledge of modern UK working lives could doubt that large numbers of people are employed to work lifting and moving cases of up to 25 kilos across a range of occupations. Although the claimant was required to comply with a "pick rate", that had not stopped the activity from being a normal day-to-day activity. Rather, the activity was the lifting and movement of goods manually. The employer's "pick rate" was not the activity but the particular requirement of the employer as to the manner and speed of the performance of the activity.
Impact of this Judgement
This judgement provides a helpful example of the concept of normal day-to-day activity in the context of work. The decision in this case closely follows European case law which confirms that the concept of disability covers limitations which affect work activity.
It would appear that the Judgement casts some doubt on guidance promulgated in 2011 relating to the determination as to whether an individual has a disability under the Equality Act 2010. Employers should therefore act with caution and examine the facts of each case on its own merits.
What does it mean for me?
Employers are under a duty to make reasonable adjustments for employees where they know or ought reasonably to know that their employee suffers from a disability.
On occasions where employees complain that they are no longer able to do the tasks that they once could, or there is some other impediment to them performing their duties, then it would be advisable to take professional advice to fully identify options and to recognise potential risks.
Get in touch
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