Nightshift working can be a ‘normal day-to-day activity’. Accordingly, substantial effects of an impairment during a policeman’s night shifts could make it a ‘disability’ within the DDA. Night working was common in the UK, and was not something special to his particular employment.
Employment Appeal Tribunal, April 2009. Full judgment: bailii.org.
Facts and decision
The claimant was a police constable and was diagnosed with ME. His work involved some night shifts. His condition was extreme from around 2am to 4 am. He walked at a slow pace, needed assistance or a hand rail to climb stairs, required to be driven home at times because of difficulty in driving, and required help with undressing when he got home, at times.
From March 2006 he did not work night shifts. However, symptoms restarted in May 2006 when he transferred to the Dumfries force and was put on a pattern that included night shifts, as before.
The Employment Tribunal found that he had a disability. The employer appealed to the Employment Appeal Tribunal, arguing that his ME did not have a substantial effect on ‘normal day-to-day activities’, and that it was not long term.
Held by Employment Appeal Tribunal: the tribunal’s decision should be upheld, the constable did have a disability.
Normal day-to-day activity
The EAT said that walking, stair climbing, driving and undressing were plainly normal day-to-day activities. The Employment Tribunal required to go further though and ask whether carrying out these activities at work between 2am and 4am was a normal day-to-day activity. The Employment Tribunall had found that it was.
The employer argued this cannot be so because it was on account of the claimant being a policeman, a specialised job, that he required to do work at that time of night. Further, the employer argued that even if it is appropriate to look outside the work of the police force and ask whether working at that time of day is normal, it is necessary to conclude that a majority of the working population do so. The employer referred to paragraphs D5 – D7 of the official 2006 Guidance on meaning of disability, for example: “Normal day-to-day activities do not include work of any particular form because no particular form of work is ‘normal’ for most people.”
The EAT rejected the employer’s arguments:
33. …Night shift working is common in the United Kingdom. Examples of it were referred to in the course of the hearing which included offshore workers, those employed in healthcare and those who work in the emergency services. We can think of many others whether hotel workers, workers in certain factories, haulage drivers and so on. Whilst they do not constitute the majority, we are readily satisfied that there are enough people who work on nightshifts for working at 2am to 4am to be a normal day-to-day activity within the meaning of section 1. When account is then taken of the fact that the activities that the Claimant was carrying out when his impairment had an effect on him were the very ordinary activities of walking, stair climbing, driving and undressing, we have no hesitation in finding that the Tribunal did not err in finding that this part of the test was satisfied.
34. Ultimately, the [employer’s] argument seemed to be that this was a case where what was being relied on was an activity which was special to the Claimant’s employment. No doubt there are many aspects of a policeman’s job which arise only because he is a policeman and he is exercising a special skill required only of policemen; in such a case the test of normal day today activity may well not be passed. However, on a proper analysis, the relevant factors here are those to which we have referred, namely 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. These are, to our mind, exactly the sort of circumstances that the DDA and the European Court of Justice [see below] had in mind.
The EAT also said it was bound by the decision of the European Court of Justice in Chacón Navas. The European Court had said that “the concept of ‘disability’ must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life.” The EAT commented on this:
“20. What we take from the [European] court’s use of the term ‘professional life’ is that when assessing, for the purposes of section 1 of the DDA, whether a person is limited in their normal day-to-day activities, it is relevant to consider whether they are 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 it is to be found in a range of different work situations. We do not, in particular, accept that ‘normal day-to-day activities’ requires to be construed so as to exclude any feature of those activities that exists because the person is at work, which was the essence of the first ground of appeal. To put it another way, something that a person does only at work may be classed as normal if it is common to different types of employment.”
The effects of the ME waxed and waned, and the employer argued that it was not long-term, i.e. that it did not last more than twelve months.
The EAT said the employer failed to recognise that the tribunal found, on medical evidence, that there was a consistent and persistent underlying condition and that, in such circumstances, paragraph 2(2) of Schedule 1 of the DDA means that symptoms of substance which wax and wane will be treated as continuing. The condition therefore persisted for more than twelve months on the tribunal’s findings, and was present at the relevant dates for the claimant’s claim and gave rise, on numerous occasions, to symptoms which were plainly such as to be a substantial adverse effect.
Like ME, stammering can wax and wane, and can be more severe at particular times.
The case may be of particular help to someone who stammers who works night shifts and finds their speech difficult in the small hours of the morning.
The EAT considered that the European Court decision of Chacón Navas was “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. However, said the EAT, a tribunal was able to take account of an adverse effect that is attributable to a work activity that is normal in the sense that it is to be found in a range of different work situations. Whether this interpretation by the EAT of Chacón Navas is correct will ultimately be for the European Court to decide, if the issue is brought before it.