Day to day duties and disability discrimination
What is the definition of disability? For the purposes of the Equality Act 2010 and by extension, discrimination cases, disability is defines as “a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.” (Section 6(1) of the Act)
When using this definition, an employee seeking to prove disability discrimination would have to address what exactly amounts to a ‘normal day-to-day activity’.
Hitherto, tribunals and the Guidance to the Act have interpreted that phrase as an activity that a large group of people would carry out and regard as normal. An activity that related to a specific job, for example lifting heavy items, would not necessarily be classified as a normal day to day activity. However, this has now changed following an Employment Appeal Tribunal hearing with reference to EU law.
The claimant, Mr Banaszczyk was employed as a picker in a distribution centre. In his job, he loaded cases of goods, some of which could weigh up to 25 kilogrammes, onto a pallet truck. One of the conditions of the job was that workers had to meet an hourly ‘pick rate’ target. The rate for Mr Banaszczyk was two hundred and ten packages per hour.
In February 2009, he was involved in a car accident that left him with an injury to his lower back. The injury led to back pain and absences from work.
In 2012, he was referred to occupational health, which concluded that this injury would be a long-term one. Although he was still able to lift and load the cases, he was now unable to meet the hourly pick rate and a subsequent meeting came to the conclusion that there was no realistic chance that his pick rate would increase.
Following the second occupational health meeting, Mr Banaszczyk was dismissed on the ground of incapability.
He lodged a claim of unfair dismissal and disability discrimination. Before those claims could proceed, a preliminary hearing was required in order to confirm that he was actually disabled for the purposes of the Equality Act.
Both parties were in agreement that Mr Banaszczyk had a long-term physical impairment but disagreed as to whether this had an adverse effect on his ability to carry out normal day-to-day activities.
Whilst his back condition did not prevent him from doing the things that people do on a regular basis, such as
going shopping with his partner by car;
taking items from shelves;
putting shopping in the car; and
taking lighter items out of the car and into the house.
cleaning ground-floor windows;
learning to drive; and
taking a flight to Poland
the Employment Tribunal said that the requirement to lift and load heavy cases as part of the job was not a normal day-to-day activity. Because of this, the tribunal said that he could not be classified as having a disability. Needless to say, Mr Banaszczyk appealed the employment tribunal’s decision.
The Employment Appeal Tribunal examined the case and observed that the employment tribunal had not taken into account EU law on the matter.
In 2013, the European Court of Justice, in judgment on Joined Cases C-335/11 and C-337/11 said that disability in terms of the Equal Treatment Framework Directive (2000/78/EC) means:
“a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one.”
The fact that large numbers of employees in warehouses and distribution centres across the UK are employed to do the selfsame task as Banaszczyk led the EAT to decide that lifting and loading heavy cases was a normal day-to-day activity and because his disability hindered his “full and effective participation” in his professional life on an equal basis with other workers, Banaszczyk could be defined as disabled.
Implications for employers
Employers should consider this ruling when looking at whether an employee can be defined as disabled.
Best practice when an employee’s underlying condition affects their ability to carry out a work role is to look how feasible it is to make adjustments that could assist them, regardless of whether they are considered to be disabled under the Equality Act. This will mean that in the event of a claim for unfair dismissal on the grounds of disability discrimination, the employer will be able to use this as a defence.
It is also worth considering that this case appears to contradict the Disability Definition Guidance which accompanies the Equality Act – particularly Part D and the Appendices.
Employers who have previously relied on the Guidance would be best advised not to do so in future, unless the occupation in question is so unusual or specialised that there can be no suggestion that it is in any way analogous with day-to-day activities.