The EAT held that a “normal day-to-day activity” does not need to be something done by most people. “Normal” should be understood as anything that is not abnormal or unusual. For example, putting in hair curlers is a normal day-to-day activity even though it is done by less than 50% of people. Also the tribunal must focus on what the claimant cannot do, rather than balancing it against what she can do.
2001, Employment Appeal Tribunal. Full judgment www.bailii.org.
The claimant suffered from a wasting of the intrinsic muscles of her right hand. Amongst other things, she could not put rollers in her hair and sometimes had to apply make-up with her left hand.
There was a dispute as to whether she was disabled under the definition in the Disability Discrimination Act 1995 (DDA). The employment tribunal held she did not have a disability. The Employment Appeal Tribunal overruled this, it held that she did have a disability.
Meaning of “normal day-to-day activities”
Employment tribunal decision on normal day-to-day activities
The employment tribunal had found that neither putting in rollers nor applying make-up were normal day-to-day activities. The term did not include “activities which are normal only for a particular person or group of people. Therefore in deciding whether an activity is a ‘normal day-to-day activity’ account should be taken of how far it is normal for most people and carried out by most people on a daily or frequent or fairly regular basis.” Using that as the test, the tribunal continued:
“It seemed to the Tribunal that putting rollers in one’s hair and applying make up are not normal day-to-day activities. To start with, they are activities carried out almost exclusively by women. Secondly, using rollers is an activity that the Tribunal believes is only carried out by a minority of women. Even if the Tribunal is wrong as to the proportion of women who use rollers, it is clear that these are activities that are normal only for a particular group of people, namely mostly women.”
Employment Appeal Tribunal (EAT) decision on normal day-to-day activities
The EAT reversed the employment tribunal decision. The EAT found that putting in rollers and applying make-up are normal day-to-day activities. Generally it took a broad approach to what is meant by the term:
EAT: “Normal day-to-day” activities are nearly always affected, in practice
Under the law which applied at the time of this case, an impairment could only fall within the DDA if it affected one of the capabilities listed in DDA Schedule 1 para 4(1). The EAT considered that only in the most exceptional case would an impairment in one of the listed capabilities not have some effect on normal day-to-day activities. (The listed capabilities included “speech”.)
30. …If there were some impairment that affected the concert pianist only in his ability to manipulate the keys of his piano, it would affect his manual dexterity but would not affect normal day-to-day activities within the meaning of the Act: but it is difficult to contemplate what the nature of an impairment might be that had such a selective effect. In most normal cases it is likely that the answer to the question “Has a Paragraph 4(1) ability been affected?” will also answer the question whether there has been an impact on normal day-to-day activities.
31. Whether such an impact is “substantial” has then to be evaluated. This depends on whether its effect is more than merely trivial…
EAT: “Normal” should be understood as anything that is not abnormal or unusual
The EAT said that even if it had taken too broad an approach in para 30 (quoted above) on “normal day-to-day activities”, “normal” should be understood as anything that is not abnormal or unusual:
32. …what is normal cannot sensibly depend on asking the question whether the majority of people do it. 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. Just as what is “substantial” for the purposes of the Act may best be understood by defining it as anything which is more than insubstantial, so too may what is “normal” best be understood by defining it as anything which is not abnormal or unusual (or, in the words of the Guidance, “particular” to the individual applicant).
The EAT supported this by examples of what had been considered normal day-to-day activities in the Vicary case, namely making beds, doing housework (polishing furniture), sewing and cutting with scissors, minor DIY tasks, filing nails, curling hair and ironing.
The employment tribunal in this case had wrongly decided that putting rollers in one’s hair or applying make-up, were not a “normal day-to-day activity”. The tribunal was wrong to treat the borderline of what is “normal” as being determined by whether more or less than 50% of the population would do it, rather than by asking whether the activity can be considered as abnormal or unusual. The EAT concluded:
41. In short, putting rollers in hair is undoubtedly a normal day-to-day activity, even though a majority of the population may not do it. … It is not an activity performed just by a particular group of people, but by many women…
Need to focus on what the claimant cannot do
The EAT held that the employment tribunal was also wrong to consider what the claimant could still do, rather than what she could not do:
28. Both Goodwin and the subsequent case of Vicary … emphasise that the determination of whether there is a substantial adverse impact must depend upon what a person cannot do, rather than what he can still do. It is not a question of balancing individual losses of function directly against retained abilities. …the question “Has manual dexterity been affected?” in circumstances where a person manipulates buttons only with difficulty cannot sensibly be answered by the riposte: “Well, she can still write a letter without difficulty…”.’
This did not mean it was necessarily enough to qualify as “disabled” that, for example, the claimant had difficulty applying make-up. However, looking at various situations where the employment tribunal found she had difficulty, the EAT was satisfied that this was a case in which manual dexterity was affected, and that the degree to which it was affected had an impact which was more than minimal on normal day-to-day activities. Accordingly she had a disability within the DDA. (Para 36 and 48 of the EAT decision)
Doing an activity less easily
The EAT noted that one’s ablity to do an activity may be impaired even though one can still do the activity. It may be impaired in that one does it less easily.
27. …[The EAT in Goodwin v Patent Office] noted that the fact that a person can carry out certain activities does not mean that his ability to do so has not been impaired – in the present case [ie Ekpe] one might have thought there was a classic example, in that the manual dexterity of the Appellant had been affected, demonstrated by the fact that she had difficulty in applying make-up and attending to her hair. The question to be answered is not whether she can still do such activities, but whether she does so less easily.
Observations by tribunal
The employment tribunal said the claimant appeared to indicate there was very little indeed she could do with her right hand. However, during the course of the hearing, the tribunal observed that she was able to manipulate an extremely inconvenient style of ring binder containing over 330 pages with her right hand.
The EAT rejected a ground of appeal that the tribunal was wrong to have regard to the way she handled a ring-file binder. The tribunal’s decision on the impact of her impairment on normal day-to day activities would quite properly be influenced by her behaviour as demonstrated before the tribunal. However:
42. …That said, we would expect any Tribunal considering whether to draw any conclusion from such behaviour to raise that possibility at the hearing, so that it may be dealt with. It should bear in mind that behaviour before a Tribunal may not be representative of behaviour generally. In the case of some conditions, notably back conditions, there may be “good days and bad days”. In others, an applicant may put on a brave face, and this may be misinterpreted. Particularly where there is expert medical evidence available, any tentative conclusion to be drawn from observation of the applicant by the inexpert eyes of the members of the Tribunal should ideally be raised with those experts to see whether there may not be some ready explanation for it. Nonetheless, we cannot say that in the present case the Tribunal’s failure to take those steps amounted to an error of law. It was presented with an applicant who was apparently claiming that there was very little she could do with her right hand, yet it saw her doing a lot. It was in our view entitled to take that into account in helping to determine that other complaints made by her were exaggerated.