What is meant by ‘normal day to day activities’ has been the subject of a lot of disability discrimination case law. The Equality Act 2010 guidance describes these as ‘things people do on a regular or daily basis’ and provides a list of non-work activities. However, the effect of an impairment on a worker's ability to participate in professional life (in other words, workplace activities) also needs to be considered, as illustrated in the recent Employment Appeal Tribunal decision in the case of Banaszczyk v Booker .
To be protected under the Equality Act, a disability has to be a physical or mental impairment that has a ‘substantial and long-term adverse effect’ on an employee’s ability to carry out ‘normal, day to day activities’. ‘Long term’ is lasting, or likely to last, at least 12 months, and ‘substantial’ is more than minor or trivial. Impairments can include conditions which are progressive, recurring, or those which would have such an effect without medication.
Employers have a duty to make reasonable adjustments where a provision, criterion or practice (PCP) or a physical feature puts, or would put, a disabled person at a substantial disadvantage in comparison to those who are not disabled. The duty only arises when an employer knows (or could be reasonably expected to know) of an employee’s disability and that employee is likely to be placed at a disadvantage.
Banaszczyk was employed from 2008 as a picker in a warehouse. His duties included loading cases of goods. Following a car accident in 2009 he could no longer lift heavy loads without suffering discomfort. As a result, his ‘pick rate’ fell below the employer's acceptable standard (he was required to load 210 cases an hour). In July 2013, he was dismissed on grounds of capability and brought a claim of unfair dismissal and disability discrimination.
Tribunal and EAT
Although the employment tribunal decided that Banaszczyk did not have a disability, it was unclear whether the employment judge concluded that the lifting and moving activity fell within the definition of normal day to day activities.
The EAT, however, held that on the tribunal's findings of fact, that there was only one possible result. Banaszczyk was disabled and his workplace activities of lifting and moving did constitute a normal day to day activity requiring reasonable adjustments. Large numbers of people in the UK are employed to lift and move heavy goods across a range of occupations and this impairment did have a substantial effect on his ability to carry out that activity (as he was significantly slower). The case, therefore, reinforces the position that a tribunal will consider certain workplace activities as ‘normal day to day activities’ even though such activities may not be ‘normal’ for everyone.
In considering possible adjustments to the way things were done, the employer in this case could have considered whether it was feasible to change the way the goods were loaded or packed, removing the need for Banaszczyk to lift the heavier goods.
As to whether the workplace could be physically changed, it could have considered whether smaller pallets and wider doorways, would have helped.
Finally, would an auxiliary aid have been useful? Perhaps some of the manual lifting could have been done by using a forklift truck, or perhaps by a second person lifting a load with Banaszczyk?
The new Acas guide on disability discrimination suggests employers ask themselves three questions in assessing whether an adjustment needs to be made. They should ask whether the organisation needs to:
The guidance states that the majority of people develop a condition during their working life rather than being born with a disability. This may mean that many employers have little experience of making reasonable adjustments. As compensation awards for successful disability discrimination claims are unlimited, it is crucial for employers to fully understand when the duty to make reasonable adjustments arises and what the duty entails.
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