This decision is likely to be helpful to claimants seeking to show they have a ‘disability’. The appeal tribunal stresses that one should look at what the claimant cannot do, rather that what they can. It also criticises a ‘sliding scale’ approach, which might set the bar for claimants too high, and says the statutory guidance may mislead on this. And it reiterates that the impairment’s effect on work activities can very much be relevant.
December 2012, Employment Appeal Tribunal (EAT). Full judgment: www.bailii.org/uk/cases/UKEAT/2012/0316_12_0612.html
The claimant was an assistant at London Bridge railway station. Hiis job involved standing for long periods, for example at the ticket gates. He was no longer able to do this after he developed lower back trouble. He was dismissed on grounds of capability. He claimed disability discrimination under Equality Act 2010, and unfair dismissal.
The employment tribunal held that he was not ‘disabled’ as the back trouble did not have a substantial effect on ability to carry out normal day-to-day activities. Accordingly there was no disability discrimination.
Held by the Employment Appeal Tribunal (EAT): The employment tribunal had not adopted the correct approach in deciding whether the claimant’s impairment had the required effect. Accordingly the case was sent back to the employment tribunal to reconsider.
Should assess what claimant cannot do
Firstly, said the EAT, the tribunal did not address what the claimant could not do because of the impairment. It concentrated upon those activities which he could do.
14. It is clear first from the definition in section 6(1)(b) of the Equality Act 2010, that what a Tribunal has to consider is on adverse effect, and that it is an adverse effect not upon his carrying out normal day-to-day activities but upon his ability to do so. Because the effect is adverse, the focus of a Tribunal must necessarily be upon that which a Claimant maintains he cannot do as a result of his physical or mental impairment…
What is a ‘substantial’ effect? – not a sliding scale
The EAT said there is not a spectrum between what is clearly substantial and what is clearly trivial. ‘Substantial’ is defined in Equality Act 2010 as more than minor or trivial. So the question is whether the adverse effect is minor or trivial. If it isn’t, it must be ‘substantial’.
14. … [Substantial] means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other.
Criticism of statutory guidance
The EAT said the way that examples are contrasted in the statutory guidance on meaning of disability can be misleading:
15. Unfortunately, as it seems to us … the guidance both in the 2006 and for that matter, the 2011 form, attempts to give assistance to Tribunals and others by contrasting those matters which are clearly trivial and insubstantial on the one hand with those which are clearly substantial on the other. That might although wrongly, be taken to indicate that there is something of a sliding scale between the two, wherein the process of assessment may operate. However, it may only operate to ask whether a matter can be regarded as trivial or insubstantial: if not, it will be substantial if it is of effect upon normal day-to-day activities. As a matter of first principle when considering the statute, this requires the focus of the Tribunal to be not upon that which a Claimant can do but that upon which he cannot do. It is what he cannot do that requires to be assessed, to see whether it is truly trivial and insubstantial or whether it is not. The employment tribunal in this case “had regard in looking at the guidance only to those matters which were clearly of a substantial effect. As we have pointed out, that is to an extent beside the point because as we have accepted, the question of substantiality is not to be decided as though it were to be placed on a spectrum.” (para 29).
Lack of comparison
The EAT (at para 16 and 28) criticised the employment tribunal for failing to use the comparative approach set out in the Paterson case. It quoted the headnote of the Paterson case which, it said, “rightly reads”:
“The only proper approach to establishing whether the disadvantage was substantial is to [assess] the effect of the disability on the individual. This involves considering how he in fact carries out the activity compared with how he would do it if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are substantial.” (The original headnote said ‘compare’ in the first sentence. The EAT in Aderemi considered it meant assess’.) For more on this in the Paterson case, see Paterson: EAT>Whether effect is ‘substantial’ – comparison with population at large.
Normal day-to-day activities nearly always affected, in the case of a listed capability
The EAT (at para 19) also comments that the judgment in Paterson adopted the words used by the EAT in Ekpe, to the effect that the substantiality of the impairment upon normal day-to-day activities is to be judged by asking whether any of the capacities listed in the then DDA (which included ‘speech’) has been affected. “If it has, then it must be almost inevitable that there will be some adverse effect upon normal day-to-day activities…” (See Ekpe>’Normal day-to-day’ activities are nearly always affected, in practice).
‘Normal day-to-day activities’
Inclusion of work activities
The EAT also criticised the employment tribunal for not taking sufficient account of the effect of the impairment on the claimant’s work activities. Indeed, said the EAT, the tribunal’s decision might be suggestive of a view that work activities did not materially count. That would be an error of law. The EAT cited the Paterson, Chacón Navas and Adams cases. In Paterson professional exams were held to be normal day-to-day activities, as was night shift working in Adams. Also, one could give effect to the EU decision in Chacón Navas by giving a meaning to day-to-day activities which encompasses activities relevant to participation in professional life. The EAT cited a passage from Adams:
“it is relevant to consider whether [the claimant is] limited in an activity which is to be found across a range of employment situations. It is plainly not meant to refer to the special skill case, such as the silversmith or watchmaker who is limited in some activity that the use of their specialist tools particularly requires, to whom we have already referred. It does though, in our view enable a Tribunal to take account of an adverse effect that is attributable to a work activity that is normal in the sense that is to be found in range of different work situations…” Applying this to the facts of present case, the EAT said it was not difficult to think of very many jobs which would require the person to be on one’s feet in a job for lengthy periods of time.
Rejection of argument that only one ‘activity’ was affected
The EAT rejected an argument by the employer that ‘activities’ is written in the plural, and the tribunal’s decision here had in mind effectively one activity only, and that was standing. The EAT’s reasoning was:
- Firstly, having a bad back would of its nature make it more difficult to carry out a number of activities which involve use of the back
- Secondly, if any question of the scope of interpretation were to arise, on should have regard to the statute’s intent, and the “purpose of the Equality Act is to remedy perceived discrimination where it exists and to remove the scourge and evil of discrimination because of a protected characteristic so far as may be done. Where a broad definition such as that of disability is adopted, that requires that a broad approach should be taken to what lies within it.”
- Thirdly, there is a need to be careful that the purpose of the statute is not defeated by an over-emphasis upon the specificity of the label to be attached to a particular situation. See the bus driver example below.
Should not define activities in too restricted a way
The EAT gave the example (from Bourne v ECT Bus (link to bailii.org), 2009) of a bus driver who found that sitting for long periods, such as those involved in a shift bus driving, was so uncomfortable because of an underlying condition that she could no longer do it. 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. One needs to take that broader approach. The EAT said:
26. 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. Here, it is in essence that caused by a lack of easy back movement. The simple answer here to [the employer’s] submission is that if there was a significant adverse effect on the activities which depended upon the ability affected by back pain, it will be capable of being within the statute.
In the present case, the employer argued that standing for a long period for a particular purpose was not a feature of many jobs. In particular, it argued, the tribunal should have regard to the fact that the claimant here had to maintain a visible presence which was a particular feature of his, although not of many jobs. The appeal tribunal said this was too restricted a definition of the activity. Redefining it more generally as being on one’s feet in a job for lengthy periods of time, it was notdifficult to think of very many jobs which would fit that description.
(For discussion of this, including application to stammering, see Normal day-to-day activities>Keeping description of the activity fairly general).
Much of this decision repeats what has been said in previous cases, but the decision is useful to reinforce it. Examples are that one looks at what the claimant cannot do rather than what s/he can, and that work activities should be seen as ‘normal day-to-day activities’ if they are found in a range of different work stituations. However, an effect on specialist skills, such as those of a silversmith or concert pianist, is not included.
The decision is probably the first to say expressly that tribunals should not see there as being a spectrum between the clearly trivial and the clearly substantial. The test is whether the effect is minor or trivial, and if not then it is ‘substantial’. This is very much consistent with the definition of ‘substantial’ in Equality Act 2010.
Linked with that, the decision is likely to he important in how tribunals approach the examples in the statutory guidance on meaning of disability, which is criticised by the EAT. For may comment on this, see 2011 guidance on definition of disability>Criticism by EAT.
The point on defining activities in a general, level way is helpful in combatting attempts by employers to argue that something is not a ‘normal day-to-day activity’ by trying to add unusual charactistics into the description of the activity. See Normal day-to-day activities>Keeping description of the activity fairly general.