These pages do not apply outside the United Kingdom.

Commissioner of Police of the Metropolis v Ekpe

(2001) Employment Appeal Tribunal

The applicant suffered from a wasting of the intrinsic muscles of her right hand. Amongst various other things, she could not put rollers in her hair and sometimes had to apply make-up with her left hand.

There was a dispute as to whether she was disabled within the DDA definition.

Meaning of "normal day-to-day activities"

The employment tribunal found that neither putting in rollers nor applying make-up were normal day-to-day activities. The term did not include "activities which are normal only for a particular person or group of people. Therefore in deciding whether an activity is a 'normal day-to-day activity' account should be taken of how far it is normal for most people and carried out by most people on a daily or frequent or fairly regular basis." Using that as the test, the Tribunal continued: "It seemed to the Tribunal that putting rollers in one's hair and applying make up are not normal day-to-day activities. To start with, they are activities carried out almost exclusively by women. Secondly, using rollers is an activity that the Tribunal believes is only carried out by a minority of women. Even if the Tribunal is wrong as to the proportion of women who use rollers, it is clear that these are activities that are normal only for a particular group of people, namely mostly women."

The Employment Appeal Tribunal reversed that decision. It found that putting in rollers and applying make-up were normal day-to-day activities. Generally it took a broad approach to what is meant by the term. (Emphases are inserted by me:)

It considered: " In most normal cases it is likely that the answer to the question "Has a Paragraph 4(1) ability been affected?" will also answer the question whether there has been an impact on normal day-to-day activities. (This is a reference to para 4(1) of Schedule 1 to the DDA. "Speech" is one of the abilities listed there.) Of course, the impact must also be substantial, ie more than trivial.
The EAT continued: "Even if we were wrong in taking too broad an approach ... above to the resolution of whether an impairment has an effect upon normal day-to-day activities, we should nonetheless emphasise that what is normal cannot sensibly depend on asking the question whether the majority of people do it. The antithesis for the purposes of the Act is between that which is "normal" and that which is "abnormal" or "unusual" as a regular activity, judged by an objective population standard. Just as what is "substantial" for the purposes of the Act may best be understood by defining it as anything which is more than insubstantial, so too may what is "normal" best be understood by defining it as anything which is not abnormal or unusual (or, in the words of the Guidance, "particular" to the individual applicant)." The EAT supported this by examples of what had been considered normal day-to-day activities in the Vicary case.
Also, in the EAT's conclusions: "...we should point out that the errors which led the Tribunal to this perverse conclusion were (i) to treat the borderline between that which is normal as a day-to-day activity and that which is not, as being determined by whether more or less than 50% of the population would do it, rather than by asking whether the activity can be considered as abnormal or unusual; and (ii) to regard the word "particular" contained in the reference in the Guidance to a "particular group of people" as meaning "identifiable" rather than "defined by some singular characteristic", and then apparently asking whether the group constituted the majority of the population. ..In short, putting rollers in hair is undoubtedly a normal day-to-day activity, even though a majority of the population may not do it. (Mr. Justice Morison himself referred to doing up one's hair as a normal day-to-day activity in paragraph 13 of Vicary.) It is not an activity performed just by a particular group of people, but by many women. A "particular group of people" has to be defined by reference to some singular characteristic - it is not sufficient that they should simply be all of the same sex. Anything done by most women, or most men for that matter, is in our view a normal day-to-day activity.

Need to focus on what the applicant could not do

The EAT considered that the employment tribunal was also wrong to consider what the applicant could still do, rather than what she could not do: "Both Goodwin and the subsequent case of Vicary ... emphasise that the determination of whether there is a substantial adverse impact must depend upon what a person cannot do, rather than what he can still do. It is not a question of balancing individual losses of function directly against retained abilities."

A full transcript of the judgment is available at http://www.employmentappeals.gov.uk/Public/Upload/EAT1044002552001.doc.

'Normal day-to-day activities'

Top