Lifting up to 25kg is a “normal day-to-day activity” when deciding whether or not someone is disabled under the Equality Act 2010. Imogen Noons explains a recent Employment Appeal Tribunal (EAT) decision on the definition of disability.
Meaning of disability
How does an employee’s condition meet the definition of disability?
Banaszczyk v Booker Ltd
Background
In a disability discrimination claim, the claimant must have a disability as defined in the Equality Act 2010 for his or her claim to proceed. Under the Act, an individual is disabled if:
- he or she has a physical or mental impairment; and
- the impairment has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities.
Facts
Mr Banaszczyk was employed by Booker Ltd as a “picker” in a distribution centre. His job involved choosing and loading cases of goods (weighing up to 25kg) onto a pallet truck by hand. Workers have to meet an hourly target “pick rate”.
In February 2009, Mr Banaszczyk was involved in a car accident that resulted in an injury to his spine. His injury caused him lower back pain and led to absences from work.
In 2012, Mr Banaszczyk was referred to occupational health, which concluded that he:
- had long-term back pain;
- was unable to reach his target picking speed; and
- might have further absences from work.
Occupational health met with Mr Banaszczyk again in February 2013 and once more concluded that he had a long-term back impairment. Occupational health thought that there was no realistic chance that Mr Banaszczyk would be able to meet his target picking speed.
In July 2013, Mr Banaszczyk was dismissed on the ground of incapability.
Employment tribunal claim
Mr Banaszczyk claimed disability discrimination in the employment tribunal. Both parties agreed that Mr Banaszczyk had a long-term physical impairment under the Equality Act 2010.
The question arose as to whether or not Mr Banaszczyk’s back condition had an adverse effect on his ability to carry out normal day-to-day activities.
The employment tribunal focused on Mr Banaszczyk’s activities outside work. The tribunal highlighted that he was able to:
- go shopping with his partner by car;
- take items from shelves;
- put shopping in the car; and
- take lighter items out of the car and into the house.
The employment tribunal also found that Mr Banaszczyk:
- could clean ground-floor windows;
- was learning to drive; and
- had been able to take a flight to Poland.
The tribunal held that Mr Banaszczyk’s condition did not have a substantial adverse effect on his ability to carry out normal day-to-day activities. This meant that Mr Banaszczyk could not be classified as having a disability.
Task: meaning of disability
EAT decision
Mr Banaszczyk appealed the employment tribunal’s decision and the Employment Appeal Tribunal (EAT) allowed his appeal.
The EAT held that it was clear that Mr Banaszczyk’s back condition had a substantial adverse effect on his ability to carry out normal day-to-day activities.
The EAT accepted that Mr Banaszczyk’s ability to lift cases weighing up to 25kg was a “normal day-to-day activity”. The EAT considered the number of workers in the UK employed across a range of occupations whose job may include the very same tasks of lifting and moving up to 25kg.
The EAT also commented that the activity of picking up and moving cases should not be confused with the “pick rate”. The “pick rate” is not an activity, but a measurement enforced by the employer for the purposes of assessing individuals’ performance and speed.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
In deciding whether or not Mr Banaszczyk’s impairment was “substantial”, the EAT held that it must take into account the time taken to carry out the activity in question. In Mr Banaszczyk’s case, his back condition meant that he was considerably slower in picking and moving cases and therefore his impairment was substantial.
Implications for employers
An individual’s ability to carry out “normal day-to-day activities” may not be decided purely by reference to his or her activities outside work. This is especially the case where the individual’s activities at work are carried out by a large number of employees across a number of different occupations.
