There has long been debate as to the activities that are capable of falling within the rather ambiguous remit of ‘normal day today’ activity for the purposes of disability under the Equality Act 2010 (EqA 2010).
However, the Employment Appeal Tribunal (EAT) in Banaszczyk v Booker Limited has provided useful guidance in relation to this area of law, ruling that a person will qualify as ‘disabled’ under the EqA 2010 where they are unable to perform basic warehouse operations, such as manually lifting and moving loads of up to 25kg.
Banaszczyk v Booker Limited
Background
In order for a person to claim disability discrimination, they must show that they have or had a disability. The EqA 2010 states that a person has a disability if:
- The person has a physical or mental impairment; and
- That impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
The Government issued guidance on the heavily deliberated meaning of ‘normal day to day activities’ and how to assess this. This states that in general, day-to-day activities are things that people do on a regular or daily basis. This captures general work-related and education-related activities.
In order to be normal an activity does not necessarily need to be carried out by a majority of people. Normal should be given its everyday, ordinary meaning, and account should be taken of how far the activity is carried out by people on a daily or frequent basis.
While work of a particular kind might not be a ‘normal’ activity for most people, tribunals are entitled in appropriate circumstances to take into account the effect on an employee of circumstances which only arise at work (Law Hospital Trust v Rush). The European Court of Justice in HK Danmark went further than this, and ruled that something that may ‘hinder the full and effective participation of the person in professional life on an equal basis with other workers’ will be ‘normal’ for the purposes of determining whether an employee has a disability.
Facts of the case
The Claimant was a picker in a distribution centre. His role involved lifting and moving packages of up to 25kg onto pallet trucks in a warehouse. The Claimant suffered from a long-term spine condition as a result of a car accident and produced occupational health evidence to this effect to a tribunal.
As a result of the Claimant’s long-term back injury, he was unable to meet his employer’s lifting and loading targets of 210 cases per hour and was dismissed as a result of this incapability.
The tribunal hearing the case found the Claimant not to be disabled on the basis that the manual lifting of items of up to 25kg did not amount to a ‘normal day-to-day activity’ and as such, the Claimant’s back condition did not have a substantial adverse effect on his carrying out of ‘normal day-to-day’ activities, which is required to be proved in order to establish disability discrimination.
The claimant appealed to the EAT.
Decision
The EAT disagreed with the tribunal and held that the scope of ‘normal day-to-day activities’ did extend to warehouse work, and work generally. The EAT considered the evidence accepted by the tribunal, and found that the Claimant was, ‘beyond doubt’, a disabled person in accordance with the EqA 2010. In reaching its decision, the EAT attached great weight to the fact that large numbers of people are employed to perform this type of manual work across a range of occupations.
The EAT noted that it is important to define the activity broadly and look at the impairment of the activity itself i.e. the lifting and moving of cases, rather than focusing on the work ‘rate’ as the impaired activity. i.e. the lifting and moving of 210 cases per hour.
Comment
This case serves as a useful reminder to employers that the scope of ‘normal day-to-day activity’ for the purposes of disability discrimination should be interpreted widely. Employers should remain alive to the risk of a disability discrimination claim being brought against them and be cautious when dismissing employees who may be deemed to be disabled for the purposes of the EqA 2010. Employers should consider having appropriate policies in place to protect their position.
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