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Cruickshank v VAW Motorcast

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Last updated 20th February 2013.

The claimant’s asthma appeared particularly at work where he was subjected to chemical fumes. The employment tribunal did not see that work situation as 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.

Employment Appeal Tribunal, 2001. Full judgment: bailii.org.

The claimant worked at a foundry, latterly as forklift truck driver. He was absent from work due to asthma caused by chemical fumes at work. These fumes were below legal limits, but he seems to have been particularly sensitive to them. The symptoms of the asthma appeared particularly at work, in the presence of the chemical, and he had needed to take sick leave.

The employment tribunal held he did not have a disability within the Disability Discrimination Act 1995. There was not a substantial effect on normal day-to-day activities.

Held by the EAT: The claimant’s appeal succeeded. The tribunal should have taken into account the effects of the asthma while he was in the factory, subjected to the chemical. The tribunal should not have looked just at normal day-to-day activities outside. The EAT distinguished the activities themselves from the ‘environment’ in which they are carried out.

28(c) ‘Normal day-to-day activities’ in Section 1 are included, it seems us, as a way of deciding whether the impairment is serious enough to qualify for protection under the Act. They are there as a yardstick, but only as a yardstick. It follows that in assessing whether a disability has a significant and long term effect on the ability to do everyday tasks, it is not appropriate to confine the evaluation to the extent to which the applicant is disabled only in a ‘normal day-to-day’ environment. In this case when the Appellant is away from work he can obviously accomplish most everyday tasks, on the findings of the Employment Tribunal. But the position of the ‘everyday tasks’ test is as a measure of seriousness, it is not dictating the actual environment in the particular case in which such symptoms are to be judged. Accordingly if, whilst at work, an applicant’s symptoms are such as to have a significant and long term effect on his ability to perform day-to-day tasks, such symptoms are not to be ignored simply because the work itself may be specialised and unusual, so long as the disability and its consequences can be measured in terms of the ability of an applicant to undertake day-to-day tasks. The Act is not restricted to the period when people who are only doing day-to-day activities; those activities are rather a ‘barometer’ or test of the degree of severity of the impairment.

Also the tribunal had been wrong to consider the employee’s condition as at the time of the tribunal hearing. The time at which to assess the disability is at the time of the alleged discriminatory act, in this case the dismissal.

My comment

This case can be helpful in arguing that effects of an impairment at work being should be taken into account, if the environment makes its effects more severe.

A person who stammers works in an environment which is particularly noisy and distracting, where she finds speech more difficult. It is likely that the effects of the stammer in this environment should be taken into account towards it being a disability. In fact, this might well be so even without the Cruikshank case, ie. even if one did not separate the environment from the activity.The environment might well be common to quite a few different types of job, so that speaking in that environment could in any event be a ‘normal day-to-day activitiy’.

The case doubtless only applies to normal day-to-day activities in an exceptional environment, for example driving (here a forklift truck), rather than intricate silversmithing.

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