'Normal day-to-day activities'

This page looks at what are 'normal day-to-day activities'. The main requirement for a stammer to be a 'disability' within the Equality Act 2010 is that it must have a 'substantial adverse effect on the person's ability to carry out normal day-to-day activities'. A separate page looks at what is a 'substantial effect'.

"EqA" or "Equality Act" means the Equality Act 2010 (link to legislation.gov.uk)

The "2011 Guidance" means the official Guidance on matters to be taken into account in determining questions relating to the definition of disability (link to ODI) website, pdf).
This has effect from 1st May 2011, replacing the 2006 guidance, unless the act complained of was before 1st May or is a continuing act which started before 1st May. See further 2011 guidance.

Introduction
Day-to-day activities
'Normal'
Must claimant actually do the activities?
Work activities
Speaking to an audience

Introduction

A stammer often varies depending on the situation. What is important for the Equality Act is whether the stammer has a 'substantial adverse effect' on one's ability to carry out 'normal day-to-day activities'. In the event - probably unlikely - that the stammer only has a substantial effect on activities which are not normal day-to-day, it does not fall within the Equality Act.

The most obvious effect on 'normal day-to-day activities' is where you actually stammer. However, there may be other relevant effects, eg where you hide your stammer or use speech techniques.

This discussion of the meaning of 'normal day-to-day activities' comes from:

the 2011 Guidance, which is not an authoritative statement of law but tribunals must take it into account where relevant; and
tribunal decisions, such as Commissioner of Police for the Metropolis v Ekpe and Paterson v Commissioner of Police of the Metropolis.

'Day-to-day' activities

The 2011 Guidance says at para D3:

"In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern."

So examples given with particular relevance to speech (and they are only examples) are:

having a conversation
using the telephone
travelling by various forms of transport
shopping
taking part in social activities
interacting with colleagues
carrying out interviews.

'Normal'

Must not be normal only for a small group of people

The 2011 Guidance continues:

D4. 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.

D5. A normal day-to-day activity is not necessarily one that is carried out by a majority of people. For example, it is possible that some activities might be carried out only, or more predominantly, by people of a particular gender, such as breast-feeding or applying make-up, and cannot therefore be said to be normal for most people. They would nevertheless be considered to be normal day-to-day activities.

This reflects the decision in Commissioner of Police for the Metropolis v Ekpe, where the Employment Appeal Tribunal reversed a decision that neither putting in rollers nor applying make-up were normal day-to-day activities. The EAT said: "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 ..... what is "normal" [may] best be understood by defining it as anything which is not abnormal or unusual (or, in the words of the [1996] Guidance, "particular" to the individual applicant)."

On the other hand, for example playing the piano to a high standard would not be a normal day-to-day activity, even though the person is a concert pianist so that it is what that particular person does every day (see below Work activities).

Must claimant actually do the activities?

It seems that if one does not do activities due to one's disability (eg if one avoids phone calls because of a stammer), they can still count as 'normal day-to-day activities'. Accordingly the impairment of ability to do them is relevant to whether one has a disability. See Hiding the stammer: Avoiding situations, and in particular the EAT decision in Goodwin v Patent Office.

The 2006 EAT decision in Vance v Royal Mail Group indicates that, apart from this, activities which the person does not do will not count as 'normal day-to-day activities' for him - but it remains to be seen whether that view is sustained by later decisions.

Work activities

How far are work activities themselves 'normal day-to-day activities'? Clearly the reasonable adjustment duty and other DDA obligations apply to any work activity, if a person's stammer has the required substantial effect in relation to 'normal day-to day activities'. What we are looking at here is a relatively limited question: if a stammer does not have sufficient effect (including hidden effects) in relation to other normal day-to day activities, how far can its effect in relation to work activities be taken into account?

Basically the principles above are applied. Work of any particular form is not necessarily a normal day-to-day activity. As explained in the 2011 guidance at para D8-D9, activities which are highly specialist or involve highly specialised levels of attainment would not be seen as normal day-to-day, eg the delicate work of a watchmaker, or playing to the piano at a concert pianist level..

The 2011 Guidance continues at para D10:

However, many types of specialised work-related or other activities may still involve normal day-to-day activities which can be adversely affected by an impairment. For example they may involve normal activities such as: sitting down, standing up, walking, running, verbal interaction, writing, driving; using everyday objects such as a computer keyboard or a mobile phone, and lifting, or carrying everyday objects, such as a vacuum cleaner.

The 2011 Guidance gives as an example of normal day-to-day activities a watchmaker (or another worker) preparing invoices and counting and recording daily takings.

The quote above mentions "verbal interaction". An example of normal day-to-day activities at work would doutbless be phone calls. An example at para D3 of the 2011 Guidance includes a person in a small retail store "dealing with customers and suppliers in person and by telephone" as a normal day-to-day activity.

An activity can be a normal day-to-day activity even though it is being done in a night shift. In Chief Constable of Dumfries & Galloway v Adams (2009) the claimant's symptoms, for example difficulties walking, were particularly severe between 2am and 4am. It was held that he was disabled even if the effects of his disability were only substantial at that time. It was not a matter of exercising some special skill particular to the job. He was carrying out very ordinary physical activities at work at a time of night when there are many other people in other forms of employment doing the same thing. This point could be helpful to someone who stammers who has particular difficulty with their speech when 'at a low ebb' in the small hours.

Remember that it is not only work activities that are relevant, even though it may be employment discrimination at issue. One looks at the effect of the stammer on normal day-to-day activities in the person's life generally.

Work activities: Environmental factors

It seems that environmental conditions at work may be taken into account towards there being a substantial adverse effect - see the example at para D21 of the 2011 Guidance on chemical fumes at work causing breathing difficulties. In the context of stammering, it should be relevant that, for example, the person has increased difficulties with phone calls because he is calling from an open plan office and can be heard by others, or perhaps because of extra stress in a work situation.

Talking against background noise can also be more difficult for some who stammer: an example in the 2011 Guidance about background noise being taken into account is at para D20, where a woman with tinnitus has particular difficulty hearing and responding with a supermarket checkout assistant if two people behind her in the queue are holding a conversation at the same time.

For more, see 'Substantial effect' - overt stammering: Variability.

Work activities: Chacón Navas and Paterson cases

'Normal day-to-day activities' in the workplace may well go further than would be expected from the discussion above. In Paterson v Commissioner of Police of the Metropolis (2007) a high pressure exam for promotion was held to be a normal day-to-day activity. The court there said it was bound by the European Court of Justice (ECJ) decision in Chacón Navas (2006) which focusses on whether the impairment hinders participation in professional life. On this basis, perhaps even presentations, interviews, oral assessments etc should be seen as 'normal day-to day activities'. The ECJ said a 'disability' is a long term limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person in professional life. It was interpreting the European Framework Employment Directive which binds the UK in relation to disability discrimination in employment.

It remains to be seen how far, following Paterson and Chacón Navas, future cases will hold that effects on work-related activities generally are taken into account in determining whether a person has a disability. Apart from the previous paragraph, the summary above is based on current published guidance on normal day-to-day activities (the 2011 Guidance), which arguably does not take adequate account of the Paterson case. The subsequent case of Chief Constable of Dumfries & Galloway v Adams (2009) has drawn a distinction between specialist skills such as silversmithing which it considered were outside Chacón Navas (as well as excluded under the UK Guidance) and activities which are more common across different jobs such as night-working, which should be counted as a normal day-to-day activity. The extent of Chacón Navas is ultimately a matter for the European Court, but it seems to me consistent with the EAT's distinction that limitation on ability to give presentations, do interviews, or take work-related oral exams could be seen as a disability; since these activities are common across many jobs. See further below Speaking to an audience.

Speaking to an audience

As with work activities generally, the reasonable adjustment duty and other Equality Act obligations can apply to work-related presentations if a person's stammer has the required substantial effect in relation to 'normal day-to day activities'. Again, what we are looking at here is a relatively limited question: if a stammer does not have sufficient effect (including hidden effects) in relation to other normal day-to day activities, how far can its effect in relation to presentations be taken into account? In other words, how far is speaking to an audience a 'normal day-to day activity'?

As discussed under the previous heading, in Paterson v Commissioner of Police of the Metropolis (2007) a high pressure exam for promotion was held to be a normal day-to-day activity. The court there said it was bound by the European Court of Justice (ECJ) decision of Chacón Navas (2006), which focussed on whether the impairment hinders participation in professional life. On this basis it may well be that presentations in a work context should be seen as 'normal day-to day activities'. because problems giving them can hinder participation in professional life. This could apply to presentations as part of a recruitment or promotion process as in the Paterson case, but it could also apply to presentations which are part of the job. However the position is not yet clear, and we will need to see how future court decisions go.

Under previous 1996 Guidance (pre-dating the 2006 and 2011 Guidance), speaking to an audience was not seen as a normal day-to-day activity. Para C19(i) said that it would not be reasonable to regard as having a substantial adverse effect: "inability to speak in front of an audience." This bullet point example was changed in the 2006 Guidance, and remains in the Appendix of the 2011 Guidance, to say that it would not be reasonable to regard as having a substantial effect: "inability to speak in front of an audience simply as a result of nervousness." This applies that speaking to an audience is at least sometimes a 'normal day-to-day activity'.

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