Regular readers may be familiar with the Equality Act 2010 under which an employee will meet the definition of disability, and therefore be entitled to protection from discrimination, if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
In the recent case of Banaszczyk v Booker, the question arose as to whether an employee’s work activities were normal day-to-day activities. Mr Banaszczyk was employed as a picker in a distribution centre and his duties involved lifting and moving cases, weighing up to 25 kilograms, by hand. Unfortunately, Mr Banaszczyk was injured in a car accident resulting in a back condition which left him unable to meet his employer’s required “pick rate”.
Mr Banaszczyk was referred to occupational health, who concluded that he was unable to meet his picking target and that his performance was not likely to improve in the foreseeable future.
Mr Banaszczyk was eventually dismissed on capability grounds and he brought claims for unfair dismissal and disability discrimination in the Employment Tribunal. A preliminary hearing was held for the Tribunal to decide whether Mr Banaszczyk was disabled under the equality legislation.
Whilst it was generally accepted that Mr Banaszczyk suffered from a long-term physical impairment, his employer did not accept that the impairment had a substantial effect on Mr Banaszczyk’s ability to carry out normal day-to-day activities.
The Tribunal accepted the medical evidence about the effect of Mr Banaszczyk’s physical impairment on his work, but found that Mr Banaszczyk did not meet the definition of disability under the Equality Act 2010 because the long-term physical impairment did not have a substantial effect on his carrying out normal day-to-day activities. The Tribunal found that Mr Banaszczyk was able to, for example, lift items off the shelves whilst out shopping, put shopping into the car and take lighter items out of the car and into his house.
Mr Banaszczyk appealed to the Employment Appeal Tribunal (EAT). The key issue in this case was whether the lifting and moving of cases weighing up to 25 kilograms amounted to normal day-to-day activities.
The Guidance to the Equality Act (which the Tribunal is required to take into account where it appears relevant) says that some work activities are so highly specialised that they would not be considered to be normal day-to-day activities, however other work-related activities may involve normal day-to-day activities.
The position of the European Court is that disability can include a physical impairment which may hinder a person’s full and effective participation in professional life, and this does not mean that the employee has to be unable to carry out any work in order to meet the definition of disability.
It was not clear to the EAT why the Tribunal decided the case as they did and the EAT found that Mr Banaszczyk was disabled. Mr Banaszczyk’s employer argued that the pick rate was the activity and was therefore so highly specialised that it could not be considered a normal day-to-day activity. The EAT however held that the manual lifting and moving of goods was a normal day-to-day activity and the substantial adverse effect was that Mr Banaszczyk was significantly slower in carrying out that activity.
The EAT’s decision concerned the issue of whether Mr Banaszczyk had a disability for the purposes of the Equality Act 2010 and so we will have to wait and see whether Mr Banaszczyk’s claims are decided in his favour by the Tribunal.
The important thing for employers to take away from this case is that an employee who may be able to carry out normal day-to-day activities outside of the workplace, could still fall within the definition of disability if they suffer from a physical (or mental) impairment which has a substantial and long-term adverse effect on their ability to carry out work-related activities.
If in doubt, it is always best to take advice – we have years of experience of advising on ill-health and disability issues and would be happy to help.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.