Under the Equality Act a person is disabled if they have an long term impairment that substantially affects a person’s ability to perform “normal day to day activities.”
Guidance has been given to employees and employers on identifying whether a person is disabled in the Office of Disability Issue’s statutory guidance on disability. This is a generally reliable and helpful guide for employees and representatives that an Employment Tribunal is required to have regard in making its decisions. However, the recent decision in Banaszczyk v Booker Ltd is a reminder that a tribunal is not bound to follow this guidance.
Banaszczyk had a long term back problem. He was a picker in a distribution centre who had to select and pick items by hand to load onto pallettes. Not unsurprisingly, his back condition made this very difficult and eventually he was dismissed by the employer and brought claims of disability discrimination.
The statutory guidance defines normal day as follows:
The term ‘normal day-to-day activities’ is not intended to include activities which are normal only for a particular person, or a small group of people. In deciding whether an activity is a normal day-to-day activity, account should be taken of how far it is carried out by people on a daily or frequent basis. In this context, ‘normal’ should be given its ordinary, everyday meaning.
Lifting heavy items in the course of picking duties was not considered by the initial ET to be a normal day to day activity and, for that reasons, a finding was made that the claimant was not disabled.
EU Law on disability however has developed a far more inclusive approach to disability which is relevant because domestic law implements EU Directives. The European Court of Justice in Chacon Navas v Eurest Colectividades SA, for example, identified that day to day activities must be interpreted with reference to activities relevant to professional life. Following this line the EAT in Banaszczyk could not allow the reliance on the non-normal nature of picking duties as not being a normal activity to stand – it was given this more inclusive approach from the European judiciary.
It will be interesting to see if the Government’s statutory guidance will be amended to reflect the approach taken by the EAT here.
The case is certainly a helpful one for reps and disabled members that reaffirms that even where a persons job is unusual or technical and specialised this can still amount to normal day to day activities. Still, I have to confess given the cases it relied upon have been established in UK caselaw for some time (see Paterson) the fact that some 8+ years later the statutory guidance remains tied to arguably outdated definitions of disability is concerning.
Banaszczyk v Booker Ltd  UKEAT 0132_15_0102
Chacon Navas v Eurest Colectividades SA  IRLR 706
Paterson v. Commissioner of Police of The Metropolis  UKEAT 0635_06_2307