15 years of stammeringlaw 1999-2014
Home Overview Disability Discrimination Employment Services Education PSED Benefits Business Advice Links More...
These pages do not apply outside Great Britain.

'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'.

Summary

The main requirement for a stammer to be a 'disability' within the Equality Act is that it has a 'substantial adverse effect on the person's ability to carry out normal day-to-day activities'.

'Normal day-to-day activities' has a wide meaning, wider than might be thought from the words themselves. However, even without the wide meaning, in most cases (if not all) a stammer is likely to have substantial effects on very normal, standard day-to-day activities. So the wide meaning may not needed in practice. See below Is the meaning of 'normal day-to-day activities' important?

Both work and non-work activities can be 'normal day to day activities'. 'Normal' means normal for people generally, rather than for a particular individual. A work activity is 'normal' if it is found in a range of different work situations (eg phone calls). On the other hand, specialist activities of a silversmith would not be normal day-to-day activities, nor would playing the piano to the level of a concert pianist, even though it is normal for the individual. See below At work.

Some examples of what are likely to be normal day-to-day activities:

The European Court decisions are helpful in arguing that something is a normal day-to-day activity if it is relevant to participation in professional life. So far, this has been particularly relevant in Recruitment and promotion.

Remember that one does not look across the range of activities and compare what a person can and cannot do. The focus is on what activities the person cannot do, or has difficulty with (see separate page on Substantial effect).

Remember also that the concept of 'normal day-to-day activities' is only relevant to the definition of 'disability'. Accordingly,

A few case examples:

Paterson v Commissioner of Police of the Metropolis 2007, Employment Appeal Tribunal
A high pressure written exam for promotion was held to be a normal day-to-day activity. The claimant's dyslexia was held to be a disability, despite the high quality of written work he had produced as a chief inspector.

Chief Constable of Dumfries & Galloway v Adams 2009, Employment Appeal Tribunal
Ordinary physical activities during a night shift were held to be normal day-to-day activities. The claimant had ME, and had particular difficulties in the nighttime.

Aderemi v London and Southeastern Railway, 2012, Employment Appeal Tribunal
A station assistant had to stand for long periods, for example at the ticket gates. This was held to be a normal day-to-day activity.

Index to the rest of this page:

Is the meaning of 'normal day-to-day activities' important?

In a sense 'no', because 'normal day-to-day activties' is very wide, wider than one would expect from the words. So it does not restrict the definition of 'disability' all that much. In a way the most important thing is to remember how wide the concept is.

The concept of 'normal day-to-day activities' is important of course in that a claimant must show there is a substantial effect on ability to carry out normal day-to-day activities. The concept is also important in that employers have tried, and doubtless will continue to try, to use it to argue that a claimant does not have a disability. However, at appeal level the employers' arguments have tended to be unsuccessful.

Nearly always some effect

In practice there will nearly always be some effect on ability to carry out normal day-to-day activities, especially in the case of stammering. The main argument, if there is one, is likely to be whether the effect is substantial, meaning 'more than minor or trivial'.

Commissioner of Police of the Metropolis v Ekpe, 2001, Employment Appeal Tribunal (EAT).
The EAT said that only in the most exceptional case would an impairment in one of the listed capabilities under DDA 1995 not have some effect on normal day-to-day activities. The listed capabilities included 'speech'. The tribunal must then decide whether the effect is 'substantial'.
See further Ekpe: 'Normal day-to-day' activities are nearly always affected, in practice. This has also been cited in later EAT decisions.

Wide meaning of 'normal day-to-day activities' often not needed

A stammer often varies depending on the situation. However, in most (possibly all) cases the stammer is likely to have a substantial effect in at least some normal day-to-day activities, eg ordering a coffee, phone calls. Remember that one does not look across the range of activities and compare what a person can and cannot do. Rather the focus is on what the person cannot do, or has difficulties with (see Substantial effect).

Accordingly a lot of the discussion on this page on whether something is or isn't a 'normal day-to-day activities' will often not be important. As part of the argument that one's stammer is a 'disability', it may be helpful to point out, for example, that a job interview should be a normal day-to-day activity and you have particular difficulties there (below: Recruitment and Promotion). However, there are likely to be substantial effects anyway in more normal everyday activities.

Not just overt effects

In looking at whether there is a substantial effect on normal day-to-day activities, remember that an overt stammer is not the only possible effect. There may be other relevant effects, eg where you hide your stammer, avoid situations, or use speech techniques.

'Day-to-day' activities

The courts have taken a broad approach to this:

Paterson v Commissioner of Police of the Metropolis 2007, Employment Appeal Tribunal (EAT)
A high pressure written exam for promotion was held to be a normal day-to-day activity. The claimant had dyslexia.

The EAT said: "In our view carrying out an assessment or examination is properly to be described as a normal day to day activity. Moreover, as we have said, in our view the act of reading and comprehension is itself a normal day-to-day activity..."

If taking an exam is a 'day-to-day' activity, it is a wide concept indeed. In a 2013 case, the EAT went even further to hold that a one-off job application could be a normal day-to-day activity:

Sobhi v Commissioner of Police of the Metropolis 2013, Employment Appeal Tribunal (EAT)
The EAT held that applying to become a police constable was a 'normal day-to-day activity'in the light of EU law. A memory impairment which led to the claimant not disclosing a previous conviction had a long-term adverse effect on such an application, and was a 'disability' within DDA 1995.
There is an issue whether this case is consistent with a previous EAT case, and if not which should prevail. See below Specific job applications as a normal day-to-day activity?

The 2011 Guidance takes a somewhat more limited approach. However the Guidance is not binding on the courts (courts are required to take it into account), unlike appeal decisions which can bind lower courts. The 2011 Guidance says:

"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."
2011 Guidance, para D3

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

'Normal'

'Normal' has also been given a wide meaning. It is not a question of whether most people do the activity. Rather 'normal' covers things which are not abnormal or unusual. It can include both work and non-work activities.

Commissioner of Police for the Metropolis v Ekpe 2001, Employment Appeal Tribunal (EAT)
"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)."

In this case the EAT reversed a decision that putting rollers in one's hair and applying make-up were not normal day-to-day activities.

However, 'normal' means normal for people generally, not just for the claimant. A concert pianist may play the piano for many hours every day, but that does not make it a normal day-to-day activity. See below At work.

The 2011 Guidance puts it:

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.
2011 Guidance, para D4 and D5.

At work

Following the approach of the Ekpe case (above), starting with Chief Constable of Dumfries & Galloway v Adams (2009) the courts have looked at whether a work activity is 'normal' in the sense that it is to be found in a range of different work situations:

Chief Constable of Dumfries & Galloway v Adams 2009, Employment Appeal Tribunal (EAT)
Ordinary physical activities during a night shift were held to be normal day-to-day activities. The claimant had ME, and had particular difficulties in the nighttime. The EAT said that night shift working is common in the UK.

This was 'normal' in the sense that it was to be found in a range of different work situations. The EAT contrasted it with a "special skill case such as the silversmith or watchmaker who is limited in some activity that the use of their specialist tools particularly requires". There the specialist activity would not be a 'normal day-to-day activity'.

Aderemi v London and Southeastern Railway, 2012, Employment Appeal Tribunal (EAT).
A station assistant had to stand for long periods, for example at the ticket gates. He developed a back problem so he was unable to do this. The EAT held it was a normal day-to-day activity. It was not difficult to think of very many jobs which would require the person to be on one's feet for lengthy periods of time.

For what the Guidance has to say on work activities, see below: At work: 2011 Guidance on 'normal' versus specialised activities. An example in the Guidance (at para D10) illustrates that even though some parts of a job may be too specialist to be 'normal' (eg delicate work on watches), other parts of the job can still be normal day-to-day activities (eg the watch repairer preparing invoices, and counting and recording daily takings).

The European Court decisions of Ring v Dansk almennyttigt Boligselskab (2013) and Chacón Navas (2006) can be helpful in arguing that a work activity is 'normal day-to-day':

Ring v Dansk almennyttigt Boligselskab, 2013, Court of Justice of the European Union (CJEU)
Modifying the previous definition it gave in Chacón Navas (2006), the European court said a disability is "...a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers and the limitation is a long-term one...."

The CJEU's decision in Chacón Navas (2006) similarly saw a disability as something which "hinders participation in professional life". That was used by the UK Employment Appeal Tribunal (EAT) in Paterson in 2007 to "[give] a meaning to day-to-day activities which encompasses the activities which are relevant to participation in professional life." Later, the EAT in Chief Constable of Dumfries & Galloway v Adams (2009) interpreted the Chacón Navas decision as applying to activities which are found in a range of different work situations, as outlined above. (On Chacón Navas and Ring, see further below Recruitment and promotion.)

There is a separate section below on Recruitment and promotion.

At work: Some examples relevant to stammering

Para D10 of the 2011 Guidance mentions 'verbal interaction' at work as an example of a normal day-to-day activity (below: At work: 2011 Guidance on 'normal' versus specialised activities).

Another example given by the 2011 Guidance is 'dealing with customers and suppliers in person and by telephone' in a shop:

A person works in a small retail store. His duties include maintaining stock in a stock room, dealing with customers and suppliers in person and by telephone, and closing the store at the end of the day. Each of these elements of the job would be regarded as a normal day-to-day activity, which could be adversely affected by an impairment.
2011 Guidance
, para D3.

Here are some further stammering examples (not necessarily from the Guidance) of what seem likely to be normal day-to-day activities.

Phone calls generally.

Where a person who stammers in an open plan office has increased difficulties with phone calls because he can be heard by others.

Where a particular person finds their stammer to be more severe in an office, or in a customer-facing situation.

Giving presentations, or taking part in meetings.
Giving presentations might seem an odd 'normal day-to-day activity'. However it is common to many jobs, and its inclusion would be supported by Chacón Navas. See also below A note on public speaking.

Where background noise makes speech more difficult.
Para D20 of the 2011 Guidance gives an example on backgound noise being taken into accout in assessing effects of tinnitus.

If a person has particular difficulty with their speech when 'at a low ebb' in the small hours on a night shift, or when their body clock is adjusting between day and night shifts (experiencing a 'jet lag' kind of effect).
Night shift working was considered to be a normal day-to-day activity in Chief Constable of Dumfries & Galloway v Adams.

These seem to be normal day-to-day activities in any event. However, see below Keeping description of the activity fairly general for points which can bolster an argument that an activity with unusual aspects is actually a normal day-to-day activity.

There is a separate section below on Recruitment and promotion.

At work: 2011 Guidance on 'normal' versus specialised activities

D8. Where activities are themselves highly specialised or involve highly specialised levels of attainment, they would not be regarded as normal day-to-day activities for most people. In some instances work-related activities are so highly specialised that they would not be regarded as normal day-to-day activities....
[Here the Guidance gives the example of a watch repairer carriying out delicate work with highly specialised tools]

D9. The same is true of other specialised activities such as playing a musical instrument to a high standard of achievement; taking part in activities where very specific skills or level of ability are required; or playing a particular sport to a high level of ability, such as would be required for a professional footballer or athlete. Where activities involve highly specialised skills or levels of attainment, they would not be regarded as normal day-to-day activities for most people....
[Here the Guidance gives the example of a woman who plays the piano to a high standard, and often takes part in public performances. It says that playing the piano to such a specialised level would not be normal for most people.]

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...
[Here the Guidance gives the example of watch repairer whose impairment means he has difficulty preparing invoices and counting and recording daily takings. These count as normal day-to-day activities, even though the delicate work on watches does not.]
2011 Guidance, para D8 - D10.

A note on public speaking

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 implies that speaking to an audience is at least sometimes a 'normal day-to-day activity'.

As described on this page, there seems to be a good argument now that presentations both in work and in the course of recruitment or promotion can be normal day-to-day activities.

Also Prof. Lisa Waddington commented in a paper in 2007 that stuttering leading to problems with making presentations may meet the ECJ test of disability in Chacón Navas but not the UK test (as then understood, before the Paterson case). Reference: Lisa Waddington, 'Case C-13/05, Chacón Navas v. Eurest Colectividades SA' (2007) 44 Common Market Law Review pp. 487-499.

Recruitment and promotion

There seems to be a strong argument that job interviews are normal day-to-day activities. The same applies to other parts of a recruitment or promotion process which involve speech (unless perhaps abnormal), such as giving a presentation.

Paterson v Commissioner of Police of the Metropolis 2007, Employment Appeal Tribunal (EAT)
A high pressure written exam for promotion was held to be a normal day-to-day activity. The claimant had dyslexia, and was held to have a disability, despite the high quality of written work he had produced as a chief inspector.

The EAT would have reached that conclusion under British law alone. But the EAT said it was in any event bound to that conclusion by the European Court decision in Chacón Navas (2006), which focusses on whether the impairment hinders participation in professional life. The EAT said: "We must read s1 [of the DDA] in a way which gives effect to EU law. We think it can be readily done, simply by giving a meaning to day-to-day activities which encompasses the activities which are relevant to participation in professional life. Appropriate measures must be taken to enable a worker to advance in his or her employment. Since the effect of the disability may adversely affect promotion prospects, then it must be said to hinder participation in professional life.

The European definition of disability was modified in Ring v Dansk almennyttigt Boligselskab (2013). However, the modified definition retains the emphasis on participation in professional life. Accordingly the decision in Paterson should still be valid. Indeed, the Paterson case was applied and re-affirmed in the light of the Ring case in Sobhi v Commissioner of Police of the Metropolis 2013.

The Paterson case talked about promotion. However, applying Ring and the Chacón Navas case, the same logic applies to recruitment, and to activities in the job itself. Job interviews (for example) are very relevant to participation in professional life, probably more so than high pressure written exams.

Examples of activities that seem likely to be normal day-to-day activities, on the basis of Paterson, Ring and Chacón Navas:

Job interviews

A presentation as part of a recruitment or promotion process
As mentioned above in At work: Some examples relevant to stammering, other presentations also seem likely to be normal day-to-day activities. See also above A note on public speaking.

Oral assessents in a recruitment or promotion process

In a way it should not really matter that a job interview, for example, is likely to be a normal day-to-day activity. The stammer will probably have substantial effects on other more normal day-to-day activities anyway. Even so, the job interview argument may be useful as part of the argument that the stammer is a disability. After all, it is a situation where the employer will often have seen the stammer. If speech is difficult in a job interview, this may in practice help cut through a discussion which might otherwise get bogged down in what effects there are or aren't in more normal activities. Having said that, since there is no case law directly on job interviews (so far as I know), the employer may try to argue a job interview is not a 'normal day-to-day activity', despite the strength of the legal argument based on Paterson.

It may be particularly difficult for an employer to argue there is no disability if there are indications that it saw the job applicant's speech difficulties at the interview as a problem, given that a job interview likely to be a normal day-to-day activity.
A claimant might argue additionally that even if the stammer does not meet the definition of 'disability', there is a perceived disability.

Specific job applications as a normal day-to-day activity?

In Sobhi, in 2013, the EAT held a one-off application to become a police constable could be a normal day-to-day activity. The EAT commented that apart from EU law, one might distinguish this from exams for promotion as discussed in the Paterson case above, as these exams would be intermittent rather than one-off.

Sobhi v Commissioner of Police of the Metropolis 2013, Employment Appeal Tribunal (EAT)
The EAT held that applying to become a police constable was a 'normal day-to-day activity' in the light of EU law. A memory impairment which led to the claimant not disclosing a previous conviction had a long-term adverse effect on such an application, and was a 'disability' within DDA 1995.

There is an issue whether that case is consistent with the following one, and if not which should prevail:

Lothian and Borders Police v Cummings (link to bailii.org), 2009, Employment Appeal Tribunal (EAT)
Failure to progress professionally was held not to be a relevant adverse effect. A special constable had impaired vision in one eye, and so did not meet the requirements to progress to being a special constable. This was not in itself a relevant adverse effect.
There is a short summary of the case on personneltoday.com.

In any event, the Lothian Police v Cummings case does not affect the discussion on this page about common recruitment activities such as job interviews and presentations being normal day-to-day activities.

How far does the Sobhi case go? Does it mean that if an employer turns a person down for a job because of a long-term impairment, then the impairment does have the required adverse effect on ability to apply for a job? This would greatly extend the meaning of 'disability'. That interpretation is probably inconsistent with Lothian and Borders v Cummings, but may be supported by the EU court decision in Ring which looks to the 'social model' of disability, including the importance of barriers created by people's attitudes. Further, if the EU Court of Justice considered the facts of Lothian and Borders v Cummings, it seems to me quite possible they would see it as involving a 'disability'.

Keeping description of the activity fairly general

How 'normal' or 'day-to-day' an activity is can depend on how one describes it. There are cases which suggest that one should take a high level, general description, which makes it easier for the activity to be 'normal day-to-day'.

High level description

An employer may try to argue that a work activity is not 'normal day-to-day' by defining it in too limited a way. However, there is case law saying that one should take a more general description of the activity:

Aderemi v London and South Eastern Railway, December 2012, Employment Appeal Tribunal (EAT).
The claimant had back problems. His job involved standing for long periods at station ticket gates. The employer argued that the claimant here had to maintain a visible presence which was a particular feature of his, although not of many jobs. The EAT said this was too restricted a definition of the activity. Redefining the activity more generally as being on one's feet in a job for lengthy periods of time, it was not difficult to think of very many jobs which would fit that description. This was a normal day-to-day activity.

The EAT said: "A problem with definition is that it can be so individual to the person in the job concerned, that it then becomes trite that it is not normal because quite simply, no-one else does precisely the job or activity that the Claimant in question does. A high-level approach needs to be taken to the relevant lack of ability."

The EAT took the example of a 2009 case involving a bus driver who developed back problems, Bourne v ECT Bus (link to bailii.org). There the claim failed essentially because the effects were not long-term. However, the EAT in Bourne had been disinclined to see "Not being able to fully carry out her job of driving a bus for an eight-hour shift" as a normal day-to-day activity The EAT in Aderemi made no comment on whether that was correct (and noted it was obiter, ie not essential to the Bourne decision). However, the EAT commented that such a specifically described task was less likely to be 'normal' than if the effect on normal day-to-day activity was considered in respect of the normal day-to-day activity of sitting, whether to drive or to do other activities. A high-level approach was needed.
See further Aderemi: Should not define activities in too restricted a way.

How might this apply to stammering?

A person who stammers works as a personal shopper in a department store, helping customers to shop, giving advice and suggestions. She does so with a stammer (but has excellent communication skills). The employer argues that helping clients with their shopping, as a personal shopper, is not a normal day-to-day activity, as it is not found across a range of different work situations. Therefore, it argues, her level of dysfluency in the job is not relevant to whether the stammer is a disability. The employee could argue that even if the activity defined in that way is not common enough, the descripton proposed by the employer is too limited. It should perhaps be 'speaking face-to-face with clients or customers', or 'dealing with clients or customers', or possibly even just 'verbal interaction' (mentioned in para D10 of the 2011 guidance), which would all be normal day-to-day activites.

Unusual environmental factors can be taken into account

It has been held that unusual environmental conditions at work can be taken into account towards there being a substantial adverse effect:

Cruickshank v VAW Motorcast 2001, Employment Appeal Tribunal (EAT)
The claimant's asthma appeared particularly at work where he was subjected to chemical fumes. The employment tribunal considered that the work situation was a 'normal day-to-day activity', so did not take it into account and held he did not have a 'disability'. The EAT disagreed, saying the symptoms at work should be taken into account even though they were triggered by the exceptional environment there.

The EAT distinguished the activities themselves from the 'environment' in which they are carried out. Accordingly the claimant's activities in the workplace (eg driving a forklift) could be a normal day-to-day activity even though they were carried out in an unusal environment which caused his asthma.
This case is the basis of the example at para D21 of the 2011 Guidance.

Similarly with stammering, the environment may make speech more difficult. The activity itself may just be having a conversation or making a phone call (normal day-to-day activities), but the environment may be less usual and may cause particular speech problems.

Often the activities are likely to be 'normal day-to-day' in any event, even if one sees the environment as part of the activity. However, the Cruikshank case can give an additional reason to counter any argument of an employer that difficulties in a particular situation are not taken into account towards the stammer being a disability.

Phone calls in an open plan office, or in a hectic atmosphere seem likely to be normal day-to-day activities anyway (see the stammering examples above). However, even if it those environments were too unusual to be 'normal', it could be argued that the normal day-to-day activity is simply making phone calls, and that the environment's effect on the person's ability to do this must be taken into account under Cruickshank.

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

Must claimant actually do the activities?

It seems that if one avoids activities because of one's disability (eg avoiding phone calls because of a stammer), they can still be 'normal day-to-day activities'. Accordingly the impairment of ability to do them is relevant towards having a disability. See Hiding the stammer: Avoiding situations, and in particular the EAT decision in Goodwin v Patent Office.

A person avoids going to parties because of their stammer. This will be relevant towards their stammer being a disability.
See Hiding the stammer: Avoiding situations.

What about activities one is not avoiding due to the disability, but just doesn't do anyway? The 2006 EAT decision in Vance v Royal Mail Group indicates that these will not count as 'normal day-to-day activities'. However the decision has been criticised by commentators, and it remains to be seen whether that view is supported by future decisions.

Equality Act obligations are not limited to 'normal day-to-day activities'

Much of this page discusses how far work-related activities are 'normal day-to-day activities. But remember that this is only relevant for the definition of 'disability'. The reasonable adjustment duty and other Equality Act obligations apply to any work activity, whether or not it is 'normal day-to-day'.

A person has a disablity as defined in the Equality Act - their impairment has a substantial effect on ability to carry out normal day-to-day activities (which may be in work or outside it). The person's job includes activities which are so specialist that they are not 'normal day-to-day activities'. Even so, the reasonable adjustment duty and other Equality Act obligations will apply also to the specialist work.

So in discussing what work-related activities are normal day-to-day activities, we are looking at 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?

Top

Homepage | Equality Act in outline | Meaning of "disability" | Employment | Goods and services | Education | Human Rights Act | Proposed changes | Social security | Advice | Links | What's new | Site index | Privacy (cookies) | Disclaimer

© Allan Tyrer 1999-2013
Last updated 17th April, 2013