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Disability: what is a “normal day-to-day activity”?
Employers will regularly come across employees with medical conditions which result in those employees being signed off as unfit for work. It is important for employers to be aware of their responsibilities towards employees, whose conditions might constitute a “disability”, including the duty to make reasonable adjustments.
But how does an employer know whether an employee’s condition could amount to a disability? The best way to investigate in this situation is to ask an employee to attend a medical appointment with an occupational health expert, who would then provide a report containing their medical opinion.
How, then, does an occupational health expert determine whether an employee has a disability? The doctor will consider the definition of what constitutes a “disability” under s.6 of the Equality Act 2010, namely whether the employee has:
“a physical or mental impairment which has a substantial and long term adverse effect on that employee’s ability to carry out normal day-to-day activities”.
Banaszcyk v Booker Limited
What exactly does the definition mean when it refers to “normal day-to-day activities”? Well, this is the question that was addressed by the Employment Appeal Tribunal (EAT) in the recent case of Banaszcyk v Booker Limited.
Mr Banaszczyk, the Claimant, was a picker in a distribution centre owned and operated by Booker Limited, his employer. At the Employment Tribunal, the Claimant gave evidence in respect of his long-term back condition. His evidence was accepted by the Tribunal, but the Tribunal did not consider that the evidence showed his condition had a substantial adverse effect on his ability to carry out normal day-to-day activities, as the impact of his condition was limited to the manual lifting of items of up to 25kg at work. The Employment Judge held that this was not a normal day-to-day activity.
The Claimant appealed, and the EAT disagreed with the Tribunal Judge’s finding on this point. It came to the decision that the definition of “normal day-to-day activities” extended to warehouse work and work generally, so on the evidence provided to the Tribunal, the Claimant satisfied the definition of being a disabled person.
Employers should note, however, that that this ruling does not mean that employers should be considering an employee’s “rate of work” to amount to an impaired normal day-to-day activity for the purposes of considering whether somebody is disabled. An employee should not be assessed based on their ability or inability to hit a daily target of, for example, moving 100 boxes per day, but instead it will depend on how the employee is impaired when required to carry out the actually activity, for example, picking up and moving boxes.
Care should always be taken when considering whether or not an employee has a disability. Best practice would be to ensure that medical evidence is always obtained in respect of an employee’s condition, either from the employee’s GP or from an occupation health specialist, before any decisions are taken regarding the employee’s ongoing employment.
By obtaining up-to-date medical information, employers will be in the best possible position to make potentially difficult decisions surrounding the issue of disability, and in turn, this would minimise the risk of employees having grounds to claim discrimination.
Anthony Fox, Employment Partner, Napthens LLP – QCS Expert Employment Law Contributor