9 Mar 2016

The Employment Appeal Tribunal (‘EAT’) has confirmed that activities carried out by an employee specifically at work can be ‘normal day-to-day activities’ for the purposes of determining whether they are disabled.

Background

Individuals with disabilities are protected from various forms of workplace discrimination under English law (including less favourable treatment, harassment and victimisation). Further, employers are obliged to take proactive steps to remove any substantial disadvantage a disabled worker may suffer when compared to those who are not disabled (commonly known as the duty to make reasonable adjustments).

A worker is disabled if he / she has ‘a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities’. The reference to ‘normal day-to-day activities’ includes activities which are relevant to participation in professional life.

In Banaszczyk v. Booker Ltd, Mr Banaszczyk was employed as a picker at a distribution centre. He was required to lift and move cases of goods weighing up to 25kg. His employer imposed a target (or ‘pick rate’) of 210 cases per hour. Following a car accident in 2009, he suffered a back injury which caused intermittent sickness absence and meant that he was unable to maintain the required ‘pick rate’ for heavier cases. In October 2012, an occupational health report confirmed that he had a long-term back problem and his performance was not likely to improve in the foreseeable future. He was eventually dismissed on grounds of incapability in July 2013.

Mr Banaszczyk brought claims for unfair dismissal and disability discrimination. The Employment Tribunal determined that his back condition did not have a substantial adverse effect on normal day-to-day activities (and therefore, he was not disabled). Mr Banaszczyk appealed to the EAT.

EAT decision

The EAT allowed the appeal and determined that Mr Banaszczyk was, in fact, disabled.

In particular:

1. The requirement to lift heavy items was, in the context of work, a normal day-to-day activity. It could not be doubted that large numbers of people are employed in the UK to lift and move cases of up to 25kg across a range of occupations, particularly in warehousing and distribution. The ‘pick rate’ was not, of itself, part of the activity – rather, it was a particular requirement of the employer as to the manner and speed of performing that activity.

2. Mr Banaszczyk’s back condition had a substantial adverse effect on his ability to perform that activity. He was significantly slower than others in lifting and moving cases (and significantly slower than he would have been, but for his physical impairment).

This meant that he could proceed with his claim for disability discrimination.

Comment

This case is an important reminder of the potentially wide ambit of disability discrimination protection. In particular, just because an activity is carried out only at work does not preclude it from being a ‘normal day-to-day activity’, when assessing whether an individual is disabled.

Employers should be mindful of this when considering whether reasonable adjustments are necessary to assist an employee in returning to work or performing their job to the required standard.

EU case law defines a disability as a limitation which hinders the full and effective participation of the person concerned in professional life on an equal basis with other workers. As domestic courts are required to interpret English law consistently with requirements of EU law, this has arguably extended the scope of disability discrimination protection beyond what might have originally been envisaged.

It is worth noting that the (now defunct) Disability Discrimination Act 1995 contained a very specific list of what constituted ‘normal day-to-day activities’. Its replacement, the Equality Act 2010, includes no such definition. However, the Government has issued guidance on the definition of ‘disability’ which, whilst not legally binding, must be taken into account by Employment Tribunals where relevant.

This guidance makes an interesting distinction between two types of activity. It says that it would be reasonable to regard difficulty picking up and carrying objects of moderate weight with one hand (such as a bag of shopping or small piece of luggage) as indicative of a disability. Conversely, an inability to move heavy objects without assistance or a mechanical aid (such as a large suitcase or heavy piece of furniture) may not be a disability.

Clearly, much depends on the specific facts. The EAT in this case was satisfied that, in the context of modern UK working life, lifting and moving objects of up to 25kg was a sufficiently ‘normal’ day-to-day activity. Other work-related activities that have been held to fall within this category include taking promotion exams or assessments and performing night shifts.