The definition of disability under the Equality Act 2010 is:
“A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”. (Section 6(1))
In the case of Banaszczyk v Booker Limited, the Claimant was employed as a picker in a distribution centre. It was his job to select cases and to lift and move cases by hand for loading onto pallet trucks. The cases could weigh up to 25kg. Following a car accident he developed a back condition: it was common ground that the back condition was a long-term physical impairment. There was occupational health evidence that this back condition impaired his performance in that he was unable to meet the “pick rate” – a target picking speed laid down by the Respondent. The Claimant was ultimately dismissed on the ground of incapability and brought proceedings alleging unfair dismissal and disability discrimination.
Was the Claimant disabled?
A preliminary hearing took place, at which the key question to be answered was whether the Claimant had a disability for the purposes of the Equality Act 2010. The focus of the attention was on the “substantial…effect on…normal day-to-day activities” element of the definition.
The Employment Judge held that his long-term physical impairment did not have a substantial effect on his carrying out normal day-to-day activities, so that he did not have a disability for the purposes of the Equality Act 2010.
The Claimant appealed to the EAT. The EAT had to decide whether the Claimant’s condition had a substantial adverse effect on his ability to carry out normal day-to-day activities.
There is no definition of “normal day to day activities” in the Equality Act 2010, however, non-binding guidance has been issued to assist in determining questions relating to the definition of disability. That guidance acknowledges that some work activities may be so specialised that they do not fall within the scope of “normal day-to-day activities”. The EAT stated that it was impossible to discern the reasoning behind the Employment Judge’s decision. For that reason, the Claimant’s appeal was upheld.
The EAT went on to hold that the Employment Judge was wrong to hold that carrying loads of over 25 kg was not a normal day-to-day activity. The EAT said:
“It is plain that the Claimant’s physical impairment had an adverse effect on his ability to do his work…. The facts about his normal day-to-day activities at work were undisputed. He was a warehouse operative lifting and moving goods in part manually and in part by the use of a pallet truck; and the goods might weigh up to 25kg. This is, in the context of work, a normal day-to-day activity.”
The EAT gave weight to the fact that large numbers of people are employed across the UK to do work of this nature. Further, because the Claimant was, due to his impairment, significantly slower than others when carrying out this activity, the effect of his condition was to be regarded as substantial and he did, therefore, satisfy the definition of a disability.
This case appears to be bad news for employers who want to argue that an employee carrying out a specialised function doesn’t fall within the scope of the disability protection. The case suggests that even a technical part of an employee’s role may be accepted as a day to day activity. We would therefore advise caution in claiming that specialised work does not amount to a “normal day to day activity”. An employer who believes that might be able to rely on this argument should take specialist legal advice to ensure they know and understand their obligations.
Claire Lawry is a paralegal and based in the employment team in Exeter. If you would like to contact Claire with regards to the content in this article, then please call 01392 210700 or email firstname.lastname@example.org.