“Normal day to day activities” now include work activities, e.g. moving and handling.
Following the Employment Appeal Tribunal (EAT) judgement in February, this year in Ndebele and Kasterlee UK Limited & Others the Judge found that the “Claimant did not return to work on or after 2 January 2014 because her employer had refused to make reasonable adjustments for her disability.” The finding that this is an unlawful act that demands compensation” is a new decision significantly changing the definition of disability for the Equality Act has been made in Banaszczyk v Booker Limited.
The EAT decided that a distribution centre worker was disabled within the meaning of the Equality Act 2010 due to his impaired ability to carry out certain tasks at work. This case emphasises the importance of a competent, evidence-based and comprehensive occupational health (OH) report, and significantly increases the scope of day to day activities for the Act.
The claimant was a picker in a distribution centre whose long-term back condition following a road traffic accident adversely affected his performance at work, and affected his ability to meet the target ‘pick rate’. He had been dismissed on capability grounds and brought claims for unfair dismissal and disability discrimination.
The claimant’s back injury impaired his ability to work to lift cases of goods of up to 25kg – the employer’s required rate – but the original tribunal judged that moving and handling was not a ‘normal day-to-day activity’.
The EAT allowed the appeal and replaced the Employment Judge’s decision with a declaration that the Claimant did have a disability due to the impact of the claimant’s decision on his work activities. This decision included the moving and handling but did not include the pick rate. The OH evidence reported that the Claimant’s work activities were substantially and adversely affected by his physical impairment, and therefore the Employment Judge should have concluded that the Claimant was disabled as defined by the Equality Act 2010
OH professionals are often asked by management to comment on the Equality Act 2010. This case clearly shows that it is not the role of the occupational health professional to comment on the Act, but to provide management with the information and evidence they might need to decide whether adjustments required to enable the individual to carry out his / her role are reasonable and practicable.
The EAT overturned the ruling of the employment judge and substituted a finding that the claimant was disabled. The EAT found that it was clear from the evidence that the claimant had a long-term physical impairment that affected his ability to carry out his duties.
The EAT was satisfied that the lifting and moving of goods was an activity carried out by a large number of people at work, across a range of occupations. On this basis, it was a ‘normal day-to- day’ activity. The effect of the claimant’s impairment was that he was significantly slower than others in carrying out these activities.
This case increases the scope of day to day activities and demonstrates the need for OH professionals to include a functional assessment for activities commonly carried out in the workplace when advising management on fitness for work with a long term condition or disability.
This decision is a reminder that the meaning of ‘day-to-day activities’ will be construed widely by a tribunal and includes activities commonly carried out in the workplace. An employee whose ability is substantially impaired at work is likely in most cases to be regarded as disabled within the meaning of the Equality Act 2010.
ACAS provides guidance for employers about the extent to which the Act applies, and whether other adjustments and adaptations will need to be considered as “affirmative action; if that employee or job applicant shares a particular protected characteristic, suffers a disadvantage connected to that feature, or if their participation in an activity is disproportionately low.”