The EAT held that lifting weights in a warehouse up to 25kg was a normal day to day activity, even where the employer expected staff to do it at a particular speed (pick rate). The claimant’s back problem meant he did it significantly more slowly. The impairment therefore had a substantial effect on his ability to do the activity, and he had a disability. The ‘pick rate’ imposed by the employer was not the activity, but potentially a barrier which interacted with the claimant’s disability to hinder his full participation in working life. My Comments below.
2016, Employment Appeal Tribunal (EAT). Full judgment: www.bailii.org/uk/cases/UKEAT/2016/0132_15_0102.html
Facts
The claimant had a long-term back problem following a car accident. He worked in a warehouse which involved lifting cases weighing up to 25kg. He was generally unable to meet the target picking speed set by the employer, and was eventually dismissed.
Outside work, he could go shopping with his partner by car, taking items from shelves, putting shopping into the car, and taking lighter items out of the car into the house.
The employment tribunal decided the claimant did not have a disability.
EAT decision
Held: he did have a disability. Lifting and moving goods of this weight was a normal day-to-day activity within the Equality Act, and he had a disability because the impairment had a substantial (ie more than minor or trivial) effect on his ability to do it.
In the Ring case, the European Court had said ‘the concept of “disability” must be understood as referring to 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.’ In Paterson the EAT had said EU law could be given effect by giving a meaning to day-to-day activities which encompasses the activities which are relevant to participation in professional life.
Here the claimant was a warehouse operative lifting and moving goods weighing up to 25kg in part manually and in part by the use of a pallet truck. The EAT said that this is, in the context of work, a normal day-to-day activity: no-one with any knowledge of modern UK life working life could doubt that large numbers of people are employed to work lifting and moving cases of up to 25kg across a range of occupations, including in particular occupations concerned with warehousing and distribution.
‘Normal day-to-day activity’ despite employer’s requirement for speed
The EAT rejected an argument by the employer that the employer’s pick rate meant it was not a ‘normal day-to-day activity’. The EAT said this would confuse the activity itself with a particular requirement of an employer as to the speed with which the activity is performed. The EAT judge said: ‘It is to my mind essential, if disability law is to be applied correctly, to define the relevant activity of working or professional life broadly: care should be taken before including in the definition the very feature which constitutes a barrier to the disabled individual’s participation in that activity. In this case the activity was the lifting and movement of goods manually; the employer’s ‘pick rate’ was not the activity, but a particular requirement of the employer as to the manner and speed of performance.’
The EAT also rejected the employer’s argument that the work should be equated with that of a specialist worker such as a silversmith or watchmaker, which according to the 2011 official guidance is not a normal day-to-day activity. The activities here did not fall within that class, though also the EAT expressed some doubt as to whether the 2011 guidance on this remains entirely correct in the light of the European Court’s decision in Ring.
EU law can overrule official 2011 guidance on meaning of disability
The Employment Tribunal judge had cited from the Appendix to the 2011 guidance, which sets out an illustrative and non-exhaustive list of factors which it would be reasonable, or not reasonable, to see as having a substantial adverse effect on normal day-to-day activities. On one side of the line he cited ‘Difficulty picking up and carrying objects of moderate weight, such as a bag of shopping or a small piece of luggage, with one hand’ which could be a disability. On the other he cited ‘Inability to move heavy objects without assistance or a mechanical aid, such as moving a large suitcase or heavy piece of furniture without a trolley.’ However, said the EAT, in the employment field it is now established law that the definition of ‘disability’ must be applied in a way which gives effect to EU law.
What effect is substantial?
The EAT cited the Paterson case as holding that the question is not whether the individual is disadvantaged compared with the population as a whole. The only proper basis was to compare the effect on the individual of the disability, and this involves considering how he in fact carries out the activity compared with how he would do 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 EAT said this approach was applied in Adams (police work on night shifts a normal day-to-day activity) and in Sobhi (completion of an application to become a police officer, including a security questionnaire, a normal day-to-day activity).
Conclusion
In the light of the above, said the EAT, the lifting was a normal day-to-day activity. Did the claimant’s impairment have a ‘substantial’ effect on his ability to do it? Para B2 of the 2011 guidance, which was plainly correct in law, said the time taken to perform an activity must be considered when deciding whether there is a substantial effect. The impairment meant he was significantly slower than others – and significantly slower than he would himself hvae been but for the impairment. Accordingly the impairment had a substantial effect on his ability to do the lifting.
The ‘pick rate’ imposed by the employer was not the activity; but it was potentially a barrier which interacted with the claimant’s disability to hinder his full participation in working life.
Comments
Wide scope of ‘normal day-to-day activities’
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’. This case confirms that ‘normal day-to-day activities’ is interpreted very widely in an employment claim, in the light of EU case law: see Normal day-to-day activities. Points of particular interest from the case:
- Examples in the 2011 guidance which indicate that something is not a normal day-to-day activity should be approached with caution in an employment claim. The EAT made clear that EU law can overrule the guidance.
- The EAT left open whether specialist work activities are included as ‘normal day-to-day activities’. Specialist here means basically ‘not normal’ across a range of work situations, so ignoring EU law one would think they are not included. Examples include a silversmith’s intricate work, or a concert pianist. The 2011 official guidance says these are not ‘normal day-to-day’ activities. However, the EAT expressed doubt as to whether the guidance on this remains entirely correct, given European Court decisions such as Ring. (Note that discrimimation in relation to these ‘not normal’ work activites is covered by the Equality Act anyway, the question is just whether a claimant has a disability if his impairment does not have a substantial effect outside of these ‘not normal’ activities.)
- The EAT implied that in a non-employment claim where EU law (the Framework Directive) does not apply, ‘normal day-to-day activities’ may retain its more normal meaning, and the 2011 guidance is more likely to remain valid. An example would be discrimination in provision of services.
Speed of doing an activity
The EAT agreed that the 2011 guidance was plainly correct in saying the time taken to perform an activity must be considered when deciding whether there is a substantial (ie more than minor or trivial) effect. This confirms what was obvious anyway, that speech being slower is one way in which a stammer may have a substantial effect so as to count as a disability.
The case is also helpful in holding that an employer’s requirement that an activity be done at a particular speed did not prejudice its being a ‘normal day-to-day activity’. This is clearly helpful for stammering. For example working in a call centre should be a normal day-to-day activity, and it makes no difference that the employee is entitled to deal with a particular number of calls per hour.
