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Case update (1): Disability discrimination – meaning of disabled

disability-bad-back-250Summary: Are ‘warehouse operations’, such as manually lifting and moving cases of up to 25 kg, ‘normal day-to-day activities’ for the purposes of disability under the Equality Act 2010?

Yes, says the EAT in Banaszczyk v Booker available here.

Background: Under the Equality Act 2010 it is unlawful for employers to discriminate against disabled employees. 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 is what amounts to a ‘normal day to day activity’.

Facts: The employee 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 employee developed a back condition and it was accepted that this was long term. The employee’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 employee was therefore dismissed on the grounds of capability.

The employee 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 employee had a disability. The Tribunal found that the requirement to lift and load heavy cases as part of the employee’s role was not a normal day to day activity. As the employee’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 employee appealed. The EAT overturned the Tribunal decision. The EAT held that lifting and loading heavy cases was a normal day to day activity and that the employee was disabled as a result.

In particular the EAT confirmed 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 (e.g. 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 employee was required to carry out. The concept of day to day activities should not be defined too narrowly otherwise the law would not be doing its job, which is to overcome the disadvantages disabled employees experience in the workplace.

Implications: The case is a helpful example of how the concept of “normal, day-to-day activities” can include those which are done at work. Other examples have included taking career-related examinations, night working and standing for long periods.

This case also sounds a note of caution about relying on the Government’s guidance which accompanies the Equality Act (available here). This guidance helps to define the concept of a normal day to day activity and includes a list of factors which could reasonably be expected to have a substantial adverse effect on normal day to day activities and those which do not. The guidance includes in the list for not having such impact; an inability to move heavy objects without assistance or mechanical aid. However, the above EAT decision would suggest that this example is incorrect.

In conclusion, employers would be best advised to exercise some caution when managing a potentially disabled employee and should consider whether it is feasible to make any adjustments to assist them. 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.

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