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Disability: ‘Normal day-to-day activities’

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Last updated 4th February, 2024.

This page looks at what are “normal day-to-day activities”. This is relevant to whether a stammer or other impairment is a ‘disability’ within the Equality Act (EqA). In employment claims, the phrase is much wider than you’d expect from the words.

Table of page contents

Summary

  • To be a “disability” within the EqA, a stammer or other impairment must have a substantial (ie a more than minor or trivial) adverse effect on the person’s ability to carry out “normal day-to-day activities”.
  • In Employment claims, below, ability to carry out “normal day-to-day activities’ has a very wide meaning.
    • It goes well beyond the usual meaning of those words, to include also “ability to participate fully and effectively in working life on an equal basis with other workers”: below Employment claims>Extended meaning.
      • This extended meaning was based on EU law, and from 1st January, 2024 is in the wording of the EqA.
    • It can therefore include infrequent activities if they are part of participation in working life, such as applying for a job, or sitting an examination for promotion: below Recruitment and promotion.
    • In the job, it includes activities found across a range of employment situations, such as lifting heavy items (up to 25kg), being on one’s feet in a job for lengthy periods of time, and working at night. This should include most speech situations, eg phone calls. Below Activities found across a range of different work situations; and At work: Some examples relevant to stammering.
    • The 2011 guidance says normal day-to-day activities do not include activities which are highly specialised, or which involve highly specialised levels of attainment – such as activities particular to a silversmith or professional sports person.
      • One EAT has said a tribunal was entitled to – but did not have to – decide that attending court was not normal day-to-day, but would need to give more explanation than it had done.
      • However, the boundaries are unclear: below At work: Specialised activities.
    • Even without the wide meaning above, in most cases a stammer is likely to have more than minor or trivial effects in very normal, standard day-to-day activities. Therefore the wider meaning will not normally be needed in practice: below Is the meaning of ‘normal day-to-day activities’ important?
  • For Non-employment claims, below, such as claims against service providers or universities, the 2011 official guidance of what is a “normal day-to-day activity” is (though not binding) more likely to be applied by the courts. This meaning of the phrase is not quite so wide as in employment claims, and is more based on the usual meaning of the words “normal day-to-day”.
    • This meaning of normal day-to-day activities is still fairly wide, but would not include job interviews for example, as they are not day-to-day, below.
    • Both work and non-work activities can be “normal day-to-day” activities” (in any claim, employment or non-employment).
    • Outside of employment claims, “normal” means not abnormal or unusual for people generally. It is not judged by what is normal for a particular individual: below “Normal” in non-employment claims.
  • The activity should be described in a broad way rather than too narrowly, eg “being on one’s feet for lengthy periods of time”, without adding that this is being done to maintain a visible presence (at station ticket gates). This makes something more likely to be a “normal day-to-day activity”: below Keeping description of the activity fairly general.
  • Some examples of what are likely to be normal day-to-day activities:
    • having a conversation (whether in work or outside it)
    • talking on the telephone (whether in work or outside it))
    • asking for something in a shop or cafe
    • social activities
    • interacting with colleagues
    • in an employment claim:
      • probably job interviews and giving presentations: below Recruitment and promotion
      • probably communicating by radio, on the basis that it is found in a range of different work situations: below At work.

A few examples of cases:

Paterson v Commissioner of Police of the Metropolis, Employment Appeal Tribunal (EAT), 2007
A high pressure written exam for promotion was held to be a normal day-to-day activity, in the light of EU law. The claimant’s dyslexia was therefore held to be a disability, despite the high quality of written work he had produced as a chief inspector.
More below: Recruitment and promotion.

Chief Constable of Dumfries & Galloway v Adams, EAT, 2009
Ordinary physical activities during a night shift were held to be normal day-to-day activities. The claimant had ME, and had particular difficulties between 2am and 4am.
More below: At work.

Aderemi v London and Southeastern Railway, EAT, 2012
A station assistant had to stand for long periods, for example at the ticket gates. This was held to be a normal day-to-day activity.
More below: At work.

Banaszczyk v Booker, EAT, 2016
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).
More below: At work.

Williams v Newport City Council, EAT, 2023
The EAT held that a social worker had a disability whether or not attending court was a normal day-to-day activitiy. Although not necessary to decide the appeal, the EAT said the employment tribunal had been entitled to decide that attending court was not a normal day-to-day activity. However, the tribunal’s decision to that effect would have been overturned due to the tribunal not giving sufficient explanation, had the claimant’s appeal not already succeeded on other grounds.
More below: At work: specialised activities. and …but there are limits.

Remember that:

  • Claims under the EqA are not limited to “normal day-to-day activities”. A disabled person can claim reasonable adjustments, for example, for something that is not a “normal day-to-day activity”. Here we are only looking at whether the person is disabled as defined in the EqA: see below Equality Act obligations are not limited to ‘normal day-to-day activities.
  • In deciding whether an impairment has a more than minor or trivial effect on ability to carry out normal day-to-day activities, the focus is on what activities the person cannot do, or has difficulty with. If there is a more than minor or trivial effect on such an activity, it is no answer to say the claimant has no problem with some other activity: see separate page Substantial effect>Focusing on what the person has difficulty with. The activities may be in or outside work, whether or not the claim is for employment discrimination.

Employment claims

Extended meaning

Ability to carry out “normal day-to-day activities” has a much wider meaning in employment claims than one would expect from those words. It is to be read as including “ability to participate fully and effectively in working life on an equal basis with other workers” (EqA Sch 1 para 5A from 1st January 2024, and before that date under EU law, below).

Effectively, this seems to mean that the substantial (ie more than minor or trivial) effect of the impairment can be on either:

  • normal day-to-day activities, whether or not work-related (ie the activities must actually be “normal” and “day-to-day”) or
  • ability to participate fully and effectively in working life on an equal basis with other workers.

Example: Since work-related activities do not need to be “day-to-day”, they can include applying for a job, or a high pressure exam for promotion.

Before January 2024, the British courts already took this wider approach in employment claims. They did this to make British law compliant with EU case law, which said that a “disability” is a long-term limitation resulting from “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”: see the Ring case below. From 1st January 2024, the EqA is actually amended to say this, more or less. From that date, EqA Sch 1 para 5A(2) says:

References in the relevant provisions [ie basically the EqA so far as it relates to employment claims] to a person’s ability to carry out normal day-to-day activities are to be taken as including references to the person’s ability to participate fully and effectively in working life on an equal basis with other workers.
EqA Sch 1 para 5A is inserted by regulation 6 of the Equality Act 2010 (Amendment) Regulations 2023 (legislation.gov.uk) SI 2023/1425, from 1st January, 2024.

The Explanatory Memorandum on the 2023 regulations inserting Sch 1 para 5A says at §7.45 that para 5A maintains the interpretation of the definition of disability in the work context that has developed through case law. The Memorandum explains at §7.26 that although “normal day-to-day activities” could be interpreted as referring only to activities which are general, common and frequent (eg sending emails, interacting with colleagues), the British courts’ approach of considering the wider EU definition alongside the EqA definition:

“…has enabled a broader interpretation of “disability” in two ways:

  • In relation to the frequency of “normal day-to-day activities”. The EAT has held that “normal day-to-day activities” can include activities that are infrequent, if they are part of participation in working life (e.g. applying for a job, sitting an examination for promotion); and
  • In relation to the range of “normal day-to-day activities” considered to be part of working life. The EAT has found that activities that are not common to the majority of jobs, but that are common across different types of employment (e.g. lifting heavy items and working at night are activities common across many jobs) are relevant when determining a person’s ability to participate in working life on an equal basis with other workers.”

My emphasis. The Memorandum here is based particularly on:
Paterson v Commissioner of Police of the Metropolis, below, 2007, which held a high pressure exam for promotion to be a normal day-to-day activity’ (even if infrequent), and
Chief Constable of Dumfries & Galloway v Adams, below, 2009, which said a work activity is “normal” if it is to be found in a range of different work situations.

Essentially, this extended definition of “normal day-to-day activities” applies to any EqA claim going to an employment tribunal. The detail on this, from January 2024, is in EqA Sch 1 para 5A(1). The extended definition would also apply if – very exceptionally – the employment tribunal is excluded by s.120(7) EqA, because of a statutory appeal elsewhere.

The EAT decision in Banaszczyk v Booker, below illustrates that the EU definition of disability – and doubtless now EqA Sch 1 5A – overrides the 2011 guidance if inconsistent. The 2011 guidance says that “Inability to move heavy objects without assistance or a mechanical aid…” is not a normal day-to-day activity. However the EAT in Banaszczyk held that in the light of EU law, lifting weights up to 25kg in a warehouse must be seen as a normal day-to-day activity.

Although EqA wording now establishes that “normal day-to-day activities” has a wider meaning in employment claims, post-Brexit rules will make it easier for, say, an employment tribunal to refer to the Court of Appeal the issue of whether it should continue to apply pre-2021 EAT decisions related to EU law. We may therefore relatively soon get a Court of Appeal or even Supreme Court decision which potentially takes a different approach in some ways to existing EAT case law. See below Technical note: Should pre-2021 case law on wider definition of disability continue to apply?

In this ‘Employment claims’ section, I focus on the extended meaning of “normal day-to-day activities” applying to work-related activities. However in an employment claim, it would also be enough for there to be a substantial effect on non-work-related normal day-to-day activities. as discussed under Non-employment claims, below.

At work

This section focuses on activities in the job itself. There is a separate section below on Recruitment and promotion. As regards activities in the job, in summary:

  • Starting with Chief Constable of Dumfries & Galloway v Adams in 2009, the courts have looked at whether a work activity is “normal” in the sense that it is to be found in a range of different work situations. In practice claimants will try to come within this criterion, and have normally succeeded in doing so. See below Activities found across a range of different work situations.
  • However, the boundaries are uncertain. The 2011 guidance, quoted below says activities which are highly specialised, or which involve highly specialised levels of attainment, are not “normal day-to-day activities” – though the EAT in Banaszczyk v Booker, 2016, left open that this exclusion in the guidance may not be entirely correct, in the light of the EU definition of disability. Also, a relatively weak EAT decision in 2023 said a tribunal was entitled to decide that attending court was not a normal day-to-day activity. See below At work: Specialised activities.

At work: Activities found across a range of different work situations

It seems clear that activities found across a range of different work situations are normal day-to-day activities – albeit the borders (below) of this have yet to be clarified.

The EAT considered activities found across a range of different work situations to be normal day-to-day activities before 2024, under EU law. This is intended to continue from January 2024; it is one of the things the government’s Explanatory Memorandum on the 2023 regulations (above) mentions as being preserved by EqA Sch 1 para 5A, inserted by those regulations. The courts will almost certainly follow this.

Activities are very often found across a range of different work situations, particularly given the wide description of activity (below) used by the courts. Some cases on this:

Chief Constable of Dumfries & Galloway v Adams, EAT, 2009
The EAT held that ordinary physical activities during a night shift were normal day-to-day activities. The claimant was a police constable with ME, and had particular difficulties between 2am and 4am. The EAT said that night shift working is common in the UK.

The EAT took from the EU court’s use of the term “professional life” that when assessing whether a person is limited in their “normal day-to-day activities”, it is relevant to consider whether the person is limited in an activity which is to be found across a range of employment situations, which he was in this case. The EAT said it 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”, which would not be seen as a normal day-to-day activity (below At work: Specialised activities).

Aderemi v London and Southeastern Railway, EAT, 2012
A station assistant had to stand for long periods, for example at ticket gates. He developed a back problem, so that he was unable to do this. The EAT held it was a normal day-to-day activity. It was not difficult to think of very many jobs which would require the person to be on their feet for lengthy periods of time.

On appeal in the EAT, the employer argued that the employment tribunal should have had regard to the fact that the claimant had to maintain a visible presence (eg at ticket gates), which was a particular feature of his job, but not of many jobs. The EAT said this was too restricted a definition of the activity. Redefining the activity more generally as being on one’s feet in a job for lengthy periods of time, it was not difficult to think of very many jobs which would fit that description. It was therefore a normal day-to-day activity.
More on this case below: Wide description of activity.

In employment claims, activities found across a range of different work situations can be normal day-to-day activities even if the 2011 guidance indicates otherwise, based on EU law before 1st January 2024, and presumably based on EqA Sch 1 para 5A from that date:

Banaszczyk v Booker, EAT, 2016
The EAT held that lifting weights up to 25kg in a warehouse was a normal day to day activity, even where the employer expected staff to do it at a particular speed (pick rate). The activity was the lifting rather than the pick rate. The EAT said: “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.”

The employment tribunal judge had cited the 2011 guidance, which says that “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” would not be a substantial adverse effect on normal day-to-day activities. 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 (below).

More on this case below Time constraint does not affect it being a normal day-to-day activity.

There are some examples relevant to stammering below.

At work: Specialised activities

The 2011 guidance, quoted below says that activities which are highly specialised, or which involve highly specialised levels of attainment, are not “normal day-to-day activities”, even in employment claims. Examples given in the guidance include:

  • a watch repairer restricted in his ability to carry out delicate work with highly specialised tools
  • playing a musical instrument to a high standard of achievement, at a level to perform to the public
  • playing a sport to a high level of ability, such as would be required for a professional footballer or athlete.

Along the same lines, the EAT in Chief Constable of Dumfries & Galloway v Adams, above, 2009, said the EU court’s use of the term “professional life” 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” (my emphasis), which would not be seen as a normal day-to-day activity.

Example: Simultaneous interpretation at a professional level, eg at a multilingual conference, may not be a “normal day-to-day” activity.

The 2011 guidance at para D10 makes the point, though, that there may be “normal day-to-day activities” related to specialised work, such as verbal interaction or preparing invoices.

The 2023 EAT decision of Williams v Newport City Council, below seems to go further. The EAT said that an employment tribunal would be entitled to decide (at least on the facts of that case) that attending court was not a normal day-to-day activity, as being specialised rather than found across a range of different work situations. However, if the issue had mattered in that case (which it did not), it seems the EAT would still have overturned the tribunal’s decision that it was not a normal day-to-day activity, because the tribunal had not given sufficient explanation of its reasons for deciding that.

It is difficult to know how far if it all the Williams decision will have an influence in future cases. A social worker attending a court seems a long way from activities which are “highly specialised or involve highly specialised levels of attainment”, as mentioned in the 2011 guidance. Particularly after Williams, there appears to be little guidance on where the boundaries lie. The position will doubtless be clarified by the courts in future cases.

However, normally these issues should not arise, as the stammer or other impairment is likely to have a more than minor or trivial effect on one’s ability to carry out activities which are more clearly normal day-to-day, or at least more clearly found across a range of different work situations (above).

I consider specialised activities in more detail below: Technical note: Specialised activities.

At work: Some examples relevant to stammering

Paragraph D10 of the 2011 Guidance, quoted below mentions “verbal interaction” at work as an example of a normal day-to-day activity.

Another example given in the 2011 Guidance is “dealing with customers and suppliers in person and by telephone” in a shop:

A person works in a small retail store. His duties include maintaining stock in a stock room, dealing with customers and suppliers in person and by telephone, and closing the store at the end of the day. Each of these elements of the job would be regarded as a normal day-to-day activity, which could be adversely affected by an impairment.
2011 Guidance, para D3.

The following are some further stammering examples (not necessarily from the 2011 Guidance) which seem likely to be normal day-to-day activities as activities found across a range of different work situations (above).

Phone calls generally.

Where a person who stammers in an open plan office has increased difficulties with phone calls because they can be heard by others.

Where a particular person finds their stammer to be more severe in an office, or in a customer-facing situation.

Giving presentations, or taking part in meetings.
Note: Both these seem common to many jobs, so as to be activities found across a range of different work situations, above. However, on possible complications if the public speaking is in a relatively unusual situation, such as in court, see below Public speaking: Unusual situations.

Where background noise makes speech more difficult.
Note: Para D20 of the 2011 Guidance gives an example on background noise being taken into account in assessing effects of tinnitus. However, even if the background noise were seen as unusual, see below Unusual environmental factors can be taken into account.

If a person has particular difficulty with their speech when ‘at a low ebb’ in the small hours on a night shift, or when their body clock is adjusting between day and night shifts (experiencing a ‘jet lag’ kind of effect).
Note: Night shift working was considered to be a normal day-to-day activity in Chief Constable of Dumfries & Galloway v Adams, above.

These seem to be normal day-to-day activities in any event. However, see below Keeping description of the activity fairly general for points which can bolster an argument that an activity with unusual aspects is actually a normal day-to-day activity.

There is a separate section below on Recruitment and promotion.

Recruitment and promotion

In Paterson below, the EAT held a high-pressure written exam for promotion to be a “normal day-to-day activity”. This was partly based on the EU court’s definition of disability (below), which focuses on whether the impairment hinders participation in professional life. In Sobhi below, the EAT held that applying to become a police constable was a “normal day-to-day activity”, again in the light of the EU definition.

From 1st January 2024, this EU definition is reflected in the actual wording of the Equality Act, namely in EqA Sch 1 para 5A(2): Employment claims>Extended meaning above. As described at that link, para 5A says that in employment claims, ability to carry out “normal day-to-day activities” also includes “ability to participate fully and effectively in working life on an equal basis with other workers”. The memorandum on the 2023 regulations (above) inserting para 5A gives “applying for a job”, and “sitting an examination for promotion”, as examples of what should be included, doubtless following the Paterson and Sobhi cases.

In the light of this – the EU definition applied in Paterson and Sobhi, and now EqA Sch 1 para 5A – there must be a strong argument that job interviews are normal day-to-day activities in an employment claim. Even more so than high-pressure promotion exams, difficulties in interviews can affect one’s “ability to participate fully and effectively in working life on an equal basis with other workers”. Further, the EAT in Sobhi held that a job application should be treated as a normal day-to-day activity.

The same applies to other parts of a recruitment process such as as giving a presentation, or oral assessments. The exam for promotion in Paterson was written (the claimant had dyslexia), but there is no reason why the position should be any different for oral assessments. A possible exception is that assessment of highly specialised abilities not found across a range of different work situations – such as simultaneous interpretation at a professional level? – may not be seen as “normal day-to-day activities”: above At work: Could more specialised activities be taken into account?

It may well be necessary to explain to an employment tribunal the legal reasons (including Sch 1 para 5A, and Paterson and Sobhi) why a job interview, or oral assessment in recruitment, for example, should count as a normal day-to-day activity. In M v Manchester Rusk Co, 2023 the employment tribunal said – without giving reasons – that job interviews and the recruitment process were not normal day-to-day activities, but no arguments seem to have been put to the tribunal on this.

Recruitment and promotion: Some examples relevant to stammering

Examples of activities that seem likely to be “normal day-to-day activities”, on the basis of case law and the new EqA Sch 1 para 5A (reasons discussed above):

Job interviews

A presentation as part of a recruitment or promotion process.

Oral assessments in a recruitment or promotion process
… with the possible exception of assessments of highly specialised abilities not found across a range of different work situations: above At work: Specialised activities.

Generally it should not matter that eg a job interview is likely to be a “normal day-to-day activity”. The stammer will probably have substantial effects on other more obviously “normal day-to-day” activities anyway. Even so, the job interview argument may be useful as part of the argument in an employment claim that the stammer is a disability, particularly as the interview (or another oral assessment) may be what led the employer not to hire the claimant:

Example: It could be particularly difficult for an employer to argue there is no disability if there is evidence that effects of stammer at the interview (or in another assessment in the recruitment process) put the employer off from hiring the claimant, or those effects were otherwise seen by the employer as a problem. If so, the employer may find if very difficult to argue that the stammer had no more than a “minor or trivial” effect in the interview or assessment, which is probably a normal day-to-day activity.

A claimant might argue additionally that even if the stammer does not meet the definition of “disability”, there is a perceived disability, or Indirect discrimination “by association”.

Recruitment and promotion: British cases

Paterson v Commissioner of Police of the Metropolis, EAT, 2007
The EAT held that a high-pressure written exam for promotion was a normal day-to-day activity. The employment tribunal had accepted the claimant should be given 25% extra time in the exam. The EAT said this must mean that he was disabled within the Disability Discrimination Act 1995 (DDA). This was despite the high quality of written work he had produced as a chief inspector.

The EAT would have reached that conclusion under British law alone. But the EAT said it was in any event bound to that conclusion by the European Court decision in Chacón Navas, below, 2006, which focuses on whether the impairment hinders participation in professional life. The EAT said: “We must read s1 [of the DDA] in a way which gives effect to EU law. We think it can be readily done, simply by giving a meaning to day-to-day activities which encompasses the activities which are relevant to participation in professional life. Appropriate measures must be taken to enable a worker to advance in his or her employment. Since the effect of the disability may adversely affect promotion prospects, then it must be said to hinder participation in professional life.”

Note: The European court’s definition of disability was later modified in Ring below: Technical note: Effect of EU law in employment claims. However, the modified definition – and, from January 2024, EqA Sch 1 para 5A – retains the emphasis on participation in professional life. Also Sobhi, below reaffirmed and applied the Paterson case in the light of Ring.

Sobhi v Commissioner of Police of the Metropolis, EAT, 2013
The EAT held that applying to become a police constable was a “normal day-to-day activity” in the light of EU law. A memory impairment which led to the claimant not disclosing a previous conviction had a long-term adverse effect on such an application, and was a “disability” within DDA 1995.

The EAT commented that apart from EU law, one might distinguish the present case from the exams for promotion discussed in Paterson above, because those exams would be intermittent rather than one-off. However, under the EU law definition of disability (below), a person must be regarded as disabled if their condition has a substantial and long-term adverse effect on any activity of theirs which relates to their effective participation in professional life. Therefore the job application should be seen as a normal day-to-day activity.

There is an earlier case which held that an impairment does not have a substantial effect just because an employer turns the person down because of it:

Lothian and Borders Police v Cumming (bailii.org), EAT, 2009
A special constable had impaired vision in one eye, and so did not meet the medical standard determined by Scottish Ministers to progress to being a regular constable. The EAT rejected an argument that the claimant’s being turned down as a police constable (because of not meeting the medical standard) itself constituted a substantial adverse effect. The EAT commented that an impairment is not seen as having a substantial effect just because an employer turns the person down because of it.

Note: The Court of Appeal in Coffey, 2019 (at §40-41), commented that this decision seemed to be right. In summary, the court in Lothian had held that it was not legitimate to shortcut the enquiry into the actual physical/mental adverse effects of an impairment and rely simply on the fact that it had led to a refusal of employment.

On the facts of Lothian and Borders Police v Cumming, a possible alternative argument now is that even if she is not disabled within the EqA, she could claim indirect disability discrimination under s.19A EqA, if a medical standard set by the employer was not objectively justified. This would be on the basis that she was put at substantively the same disadvantage as those with a sight disability.

Lothian and Borders Police v Cumming does not affect the above discussion about common recruitment activities – such as job interviews, presentations, and other oral assessments of normal skills – being “normal day-to-day activities”. In Lothian there was no physical activity on which the claimant was arguing her impairment had a substantial effect.

Non-employment claims

In non-employment claims, the extended meaning (above) of “normal day-to-day” activities based on EU law does not apply. So in non-employment claims, the test discussed below applies, for both work and non-work activities. It is based on a more straightforward reading of the words “normal day-to-day” activity.

Non-employment claims are mainly those brought in the County Court (or sheriff court in Scotland). They include claims against a service provider, against an authority exercising a public function, or by a student against a university or college.

The test discussed below also applies to employment claims, as regards how far activities not related to working life (broadly speaking) are “normal day-to-day activities”. In employment claims, a wider range of work-related activities is covered as discussed above, but the test below applies for activities outside of one’s working life.

“Day-to-day” activities in non-employment claims

The 2011 Guidance is normally likely to be applied in non-employment claims (as it is not overridden by EU law and now EqA Sch 1 para 5A), albeit the guidance is not binding on the courts: Legal effect of statutory guidance and codes. The 2011 Guidance says:

“In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern.”
2011 Guidance, para D3

So examples in the guidance with particular relevance to speech (and they are only examples) are:

  • having a conversation
  • using the telephone
  • travelling by various forms of transport
  • shopping
  • taking part in social activities
  • interacting with colleagues.

“Normal” in non-employment claims:

“Normal” has been given a wide meaning, even for non-employment claims:

  • It is not a question of whether most people do the activity. Rather, “normal” covers things which are not abnormal or unusual.
  • “Normal” means normal for people generally, not just for the claimant.
  • It can include both work and non-work activities.

Commissioner of Police for the Metropolis v Ekpe, EAT, 2001
The EAT reversed a decision that putting rollers in one’s hair and applying make-up were not normal day-to-day activities.

The EAT said: “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 ….. what is ‘normal’ [may] best be understood by defining it as anything which is not abnormal or unusual (or, in the words of the [1996] Guidance, ‘particular’ to the individual applicant).”

So “normal” means normal for people generally, not just for the claimant. For example, base jumping (jumping off cliffs or structures with a parachute or wingsuit) is not a normal day-to-day activity even if it is normal day-to-day for a particular individual. The 2011 Guidance explains it:

D4. The term ‘normal day-to-day activities’ is not intended to include activities which are normal only for a particular person, or a small group of people. In deciding whether an activity is a normal day-to-day activity, account should be taken of how far it is carried out by people on a daily or frequent basis. In this context, ‘normal’ should be given its ordinary, everyday meaning.

D5. A normal day-to-day activity is not necessarily one that is carried out by a majority of people. For example, it is possible that some activities might be carried out only, or more predominantly, by people of a particular gender, such as breast-feeding or applying make-up, and cannot therefore be said to be normal for most people. They would nevertheless be considered to be normal day-to-day activities.
2011 Guidance, para D4 and D5.

Keeping description of the activity fairly general

Whether an activity is found in a range of different work situations (for employment claims, see At work, above), or otherwise how “normal” or “day-to-day” an activity is, often depends on how one describes the activity. There are cases which suggest that one should take a high level, general description. This favours the claimant, in that it makes it easier for the activity to be common to a range of work situations, or “normal day-to-day”.

Wide description of activity

An employer etc may try to argue that an activity is not “normal day-to-day” by defining it in too limited a way. However Aderemi below is authority for saying that one should take a more general description of the activity.

For example, if a person who stammers works as a personal shopper, it seems that activity should be described in a general way, perhaps ‘speaking face-to-face with clients or customers’, so as to be a normal day-to-day activity found across a range of different work situations: see the Example below.

Para D10 of the 2011 guidance even mentions “verbal interaction” as an example of normal day-to-day activities – so a very broad description.

Aderemi v London and South Eastern Railway, EAT, 2012.
The claimant had back problems. His job involved standing for long periods at station ticket gates. The employer argued that the claimant had to maintain a visible presence which was a particular feature of his job, although not of many jobs. The EAT said this was too restricted a definition of the activity. Redefining the activity more generally as being on one’s feet in a job for lengthy periods of time, it was not difficult to think of very many jobs which would fit that description. This was a normal day-to-day activity.

The EAT said: “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.”

The EAT took the example of a 2009 case involving a bus driver who developed back problems, Bourne v ECT Bus (bailii.org). 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. A high-level approach was needed.
See further on separate page Aderemi>Should not define activities in too restricted a way.

An example of how this might apply to stammering:

Example: A person who stammers works as a personal shopper in a department store, helping customers to shop, giving advice and suggestions. She does so with a stammer (but has excellent communication skills). The employer argues that helping clients with their shopping, as a personal shopper, is not a normal day-to-day activity, as it is not found across a range of different work situations. Therefore, it argues, her level of dysfluency in the job is not relevant to whether the stammer is a disability. The worker could argue that even if the activity defined in that way is not common enough, the description proposed by the employer is too limited. It should perhaps be ‘speaking face-to-face with clients or customers’, or ‘dealing with clients or customers’, or even just ‘verbal interaction’ (mentioned in para D10 of the 2011 guidance), which would all be normal day-to-day activites.

Time constraint does not affect it being a normal day-to-day activity

Say there is a target for how many customers one should deal with in a particular time, or some other time constraint. Does this mean it is no longer a normal day-to-day activity? One would expect this not to make a difference. Further, the EAT has confirmed that it should not alter the fact that something is a normal day-to-day activity:

Banaszczyk v Booker, EAT, 2016 (other aspects are summarised above)
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 activity was the lifting rather than the pick rate. The activity itself should not be confused with a particular requirement of an employer as to the speed with which the activity is performed.

The EAT 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.”

… but there are limits

An argument to focus on the underlying activities, such as speaking, failed on the facts where the claimant had a specific fear of attending court:

Williams v Newport City Council, EAT, 2023
A social worker in a fostering team had been traumatised by an experience in court. The employer introduced a requirement that she attend the family court if necessary. This would be to defend assessments she had made of people’s suitability to care for a particular child. As a result she went off sick with stress. The EAT held that she was disabled within the EqA even if attending court was not a normal day-to-day activity. She was unable to do her work activities generally while that requirement was in place.

The employment tribunal had decided that the claimant’s attending court was not a normal day-to-day activity. Although not necessary to decide the appeal, the EAT said the employment tribunal had been entitled to decide that it was not a normal day-to-day activity, or would have been if it had given sufficient explanation. One argument made by the claimant against it being a normal day-to-day activity, citing Banaszczyk v Booker above, was that the underlying tasks involved in attending at court (listed in §34, below) plainly were normal day-to-day activities.

The EAT rejected her argument, on the facts of the case, saying:
“34. … in our view the present case is not one where the nature of the activity can be properly captured by a bare description of its components.  It could not in this case properly be said that the task at issue consisted merely of reading into a subject, travelling to a venue, speaking and answering questions on the subject, all of which would themselves be ordinary day-to-day activities.  Such a reductive analysis would fail to capture the distinctive nature of the task as being required to explain and defend the [employer’s] conduct or position specifically in the context of contested litigation over an inherently highly-charged subject, in person to a judge at a court hearing.”

Note: On a further aspect of this case, namely whether attending court was a specialised activity rather than one found across a range of different work situations, see below Technical note: Specialised activities.

This aspect of the EAT decision in Williams seems understandable. The claimant had no problem with the underlying activities as such, for example with speaking. Due to her mental health impairment, she just had a specific issue with the courtroom situation, which the employment tribunal was held not to be normal day-to-day.

What about public speaking by someone who stammers, if it is a relatively unusual situation, such as in court? See below Public speaking: Unusual situations.

Unusual environmental factors can be taken into account

The Employment Appeal Tribunal (EAT) has held that unusual environmental conditions at work can be taken into account towards there being a substantial adverse effect, even though the environment was to be left out of account in deciding whether the activity was normal day-to-day:

Cruickshank v VAW Motorcast, EAT, 2001
The claimant’s asthma appeared particularly at work where he was subjected to chemical fumes. The employment tribunal considered that the work situation was not 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.

The EAT distinguished the activities themselves from the “environment” in which they are carried out. Accordingly the claimant’s activities in the workplace (eg driving a forklift) could be a normal day-to-day activity even though they were carried out in an unusual environment which caused his asthma.

This case is the basis of the example at para D21 of the 2011 Guidance.

Similarly with stammering, the environment may make speech more difficult. The activity itself may just be having a conversation or making a phone call (normal day-to-day activities), but the environment may be less usual and may cause particular speech problems.

Often the activities are likely to be “normal day-to-day” even if one sees the environment as part of the activity. However, the Cruikshank case can give an additional argument to counter any argument by an employer that difficulties in a particular environment are not taken into account towards the stammer being a disability.

Example: Phone calls in an open plan office, or in a hectic atmosphere, seem likely to be normal day-to-day activities anyway, on the basis they are found in a range of jobs (above At work). However, even if it those environments were too unusual, it could be argued that the normal day-to-day activity is simply making phone calls, and that the environment’s effect on the person’s ability to do this must be taken into account under Cruickshank.

For more, see ‘Substantial effect’>Variability – tiredness, stress, environment etc.

Must claimant actually do the activities?

It seems that if one avoids activities because of one’s disability – eg avoiding phone calls because of a stammer – they can still be “normal day-to-day activities”. Accordingly the impairment of one’s ability to do them is relevant towards having a disability. See Hiding the stammer, and in particular the EAT decision in Goodwin v Patent Office.

A person avoids socialising because of their stammer. This should be relevant towards their stammer being a disability.
See Hiding the stammer.

What about activities one is not avoiding due to the disability, but just doesn’t do anyway? The 2006 EAT decision in Vance v Royal Mail Group indicates that these are not “normal day-to-day activities”. However the decision has been criticised by commentators, and it remains to be seen whether that view is supported by future decisions.

EqA obligations are not limited to “normal day-to-day activities”

This page discusses how far activities are “normal day-to-day activities”, both inside and outside work. But remember that this is only relevant for deciding whether someone has a “disability” within the EqA. If the claimant does have a disability as defined, then for example an employer’s reasonable adjustment duty applies to any work activity:

Example: A person has a disability as defined in the EqA, because their impairment has a substantial (and long-term) effect on ability to carry out normal day-to-day activities, which may be in work or outside it.

The person’s job includes activities which are so specialist that they are not “normal day-to-day activities”. Even so, the reasonable adjustment duty and other EqA obligations also apply to this specialist work.

Similarly, if someone has a disability as defined, the EqA duties of a service provider extend also to activities which are not normal day-to-day activities – such as going on holiday, or extreme sports.

Is the meaning of “normal day-to-day activities” important?

Legally, the main precondition for a stammer to be a “disability” within the EqA is that it has a substantial adverse effect on the person’s ability to carry out “normal day-to-day activities”.

However, for work-related activities in employment claims (above), almost anything is likely to be a “normal day-to-day activity”. The concept is much wider than one would expect from the words “normal day-to-day”. Therefore it does not restrict what is a “disability” all that much. In a way, the most important thing to remember is how wide the concept is.

Legally though the concept of “normal day-to-day activities” is important in that if the employer etc does not accept the claimant has a disability, then the claimant must show there is a substantial effect on their ability to carry out normal day-to-day activities. Employers have tried, and doubtless will continue to try, to argue that a particular activity is not a normal day-to-day activity (eg Stammering case with impact statement, 2020). However at least as regards work-related activities in employment claims, at appeal level the employers’ arguments have mostly been unsuccessful, as discussed above: Employment claims. Employment tribunals should of course follow what appeal cases have decided, and from January 2024 the argument is bolstered by EqA Sch 1 para 5A (above Employment claims>Extended meaning).

Nearly always some effect

In practice there will nearly always be some effect on ability to carry out normal day-to-day activities, especially in the case of stammering. The main argument, if there is one, is likely to be whether the effect is only “minor or trivial”; if not, then it is “substantial” (Aderemi v London and South Eastern Railway).

Commissioner of Police of the Metropolis v Ekpe, EAT, 2001
The EAT said that only in the most exceptional case would an impairment in one of the listed capabilities under DDA 1995 not have some effect on normal day-to-day activities. The listed capabilities included “speech”. The tribunal must then decide whether the effect is “substantial”.
See further Ekpe: ‘Normal day-to-day’ activities are nearly always affected, in practice. This has also been cited in later EAT decisions.

Wide meaning of “normal day-to-day activities” often not needed

A stammer often varies depending on the situation. However, in most cases the stammer is likely to have a substantial effect in at least some normal day-to-day activities, eg ordering a coffee, phone calls. Remember that one does not look across the range of activities and compare what a person can and cannot do. Rather the focus is on what the person cannot do, or has difficulties with: see Substantial effect>Focusing on what the person has difficulty with.

Accordingly a lot of the discussion on this page on whether something is or isn’t a “normal day-to-day activity” will often not be important. As part of the argument that one’s stammer is a “disability”, it may be helpful in an employment claim to point out, for example, that a job interview, or making a presentation, should be a normal day-to-day activity, and that you have particular difficulties with the stammer in those activities, if you do (above: Recruitment and Promotion). However, there are likely to be substantial effects anyway in more normal everyday activities.

Not just overt effects

In looking at whether there is a substantial effect on normal day-to-day activities, remember that an overt stammer is not the only possible effect. There may be other relevant effects, for example where you hide your stammer (eg not speaking, switching words, avoiding situations), or use speech techniques.

Technical note: Effect of EU law in employment claims

EU court definition of “disability”

European Union (EU) law on disability discrimination applied mainly to employment claims. In employment claims, the EU Framework Employment Directive sets minimum standards with which member states must comply, including on the meaning of “disability”:

Ring v Dansk almennyttigt Boligselskab, 2013, EU Court of Justice (ECJ)
The ECJ said that a disability is:
“…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 and the limitation is a long-term one….”.
My emphasis.

This was a modification of the previous definition given by the ECJ in Chacón Navas, 2006. In Chacón Navas the ECJ similarly saw a disability as something which “hinders participation in professional life”. However, its decision in Ring modified this in the light of the social model of disability in the UN disability convention (CRPD), which had taken effect since Chacón Navas.

Effect of EU definition in British cases

Thus, EU cases said basically that a “disability” is a long-term impairment which, in interaction with other barriers, hinders full and effective participation in professional life on an equal basis with others (Ring case above).

This EU definition is wider than the EqA definition, in that it includes impairments which hinder participation in professional life, even if they do not affect “normal day-to-day” activities.

British courts in employment claims have responded by giving a very wide meaning to “normal day-to-activities”, where the activity is work-related. In an employment claim, therefore, the EU case law, and British cases based on it, can be very helpful in arguing that a work activity is “normal day-to-day” activity (see further above Recruitment and promotion and At work). This should continue from January 2024 (below). For example:

  • EU case law was used by the UK Employment Appeal Tribunal (EAT) in Paterson v Commissioner of Police of the Metropolis, above in 2007 to hold that taking a high-level promotion exam was a normal day-day-activity. The EAT said the court should “[give] a meaning to day-to-day activities which encompasses the activities which are relevant to participation in professional life.”
  • The EAT in Chief Constable of Dumfries & Galloway v Adams, above, 2009, interpreted EU case law as making activities “normal day-to-day” if they are found in a range of different work situations, such as working at night.
  • On the same reasoning, the EAT in Banaszczyk v Booker, above, 2016, held that lifting heavy weights up to 25kg was a normal day-to-day activity. The EAT in that case also left open that EU law may go further and require even specialised activities (above) not found in a range of different work situations (eg activities of a silversmith or concert pianist) to be treated as “normal day-to-day”.
  • On the other hand, in Williams v Newport City Council, above, 2023, the EAT held that an employment tribunal was entitled to decide that attending court was not a normal day-to-day activity (or would have been had the tribunal given sufficient explanation), as being specialised rather than found across a range of different work situations.
  • In Sobhi v Commissioner of Police of the Metropolis, above, 2013, the EAT held a one-off job application to be a normal day-to-day activity. A memory impairment had led to the claimant not disclosing a previous conviction when applying to be a police constable.

Basis on which British courts give effect to EU definition of disability

To end of 2020

As a member of the EU, and then under the terms of a transitional period, the UK remained bound by EU law up to the end of 2020.

To end of 2023

Even after Brexit, UK legislation said that from January 2021, UK courts should normally continue to apply EU law and comply with EU court decisions (and UK court decisions on EU law) unless and until the Equality Act is amended: Brexit: Effect of EU law when interpreting Equality Act from 2021. Therefore despite Brexit, the employment tribunals were likely to continue applying the EU definition of disability, and case law around it.

From January 2024

From 1st January 2024, the Retained EU Law Act 2023 makes some changes to the position of EU law in the UK. However, whatever the effect of that, from 1st January 2024 the EU definition of disability in employment claims is effectively brought into the wording of the EqA itself, by a new EqA Sch 1 para 5A(2): above Employment claims>Extended meaning.

Thus, from January 2024, the EqA expressly says that, in relation to employment claims, references to a person’s ability to carry out normal day-to-day activities are to be taken as including references to the person’s ability to participate fully and effectively in working life on an equal basis with other workers.

Technical note: Should pre-2021 case law on wider definition of disability continue to apply?

Question

The Equality Act 2010 (Amendment) Regulations 2023 (legislation.gov.uk), SI 2023/1425, modify the EqA from 1st January 2024. In applying this amended EqA wording, how far are British courts still bound by pre-2011 decisions of the EU Court of Justice, and of British courts on EU law?

That is mainly important as regards the wider definition of “disability”, as there is substantial pre-2021 case law on this – partly by the EU court, but then important Employment Appeal Tribunal (EAT) decisions in Britain applying the EU decisions: above Extended meaning and Effect of EU definition in British cases.

Summary

It seems that the normal rules on how far British courts have to follow EU case law will continue to apply, despite the EqA having been amended, since applying the case law is consistent with the intention of the modification: below S.6 EU (Withdrawal) Act 2018 should still apply to this case law, after modification of EqA.

However when s.6 Retained EU Law Act 2023 comes into force, it will introduce a system where lower courts can refer the issue of whether they should follow previous case law to the Court of Appeal. It may therefore be relatively soon that we get a review by the Court of Appeal (which might be restricted by its decision in Coffey) and potentially the Supreme Court of the current EAT case law. Below EAT cases will be reviewed by Court of Appeal, and perhaps Supreme Court.

Any decisions of the higher courts should of course reflect the wider meaning that EqA wording itself now expressly gives to “disability” in employment claims: above Extended meaning. Therefore, it should not really matter whether the higher courts see as binding the EU court decision in Ring, which set out the EU definition of disability.

EAT case law will be reviewed by Court of Appeal, and perhaps Supreme Court

Current case law is mostly EAT

The EU court definition of “disability” in Ring is in very general terms. It is British case law which has filled out detail on the wider definition of disability that should therefore be applied under the EqA.

Nearly all this British case law is at Employment Appeal Tribunal (EAT) level – see this page generally. The only exception I can think of is Chief Constable of Norfolk v Coffey, where the Court of Appeal followed the EAT decisions, but without the employer really challenging the EAT’s approach.

However, as discussed below, the Retained EU Law Act 2023 is likely to lead to a somewhat earlier review of these EAT decisions by the Court of Appeal, and perhaps the Supreme Court, when s.6 of the 2023 Act comes into force.

Before s.6 REUL Act brought into force

Since s.6 Retained EU Law Act 2023 is not yet in force, the position under s.6 EU (Withdrawal) Act 2018 remains that most British courts should follow pre-2021 EU-related case law. Higher courts such as the Court of Appeal and Supreme Court are allowed to depart from it, but broadly even they should “normally” follow it. See Effect of EU law when interpreting Equality Act, from 2024>Pre-2021 EU case law will normally still apply.

So the Court of Appeal and Supreme Court would “normally” follow EU court decisions, including Ring on the EU definition of disability. However, this makes little difference here, as the EU definition of disability is now roughly reflected in the wording of the EqA (above Extended meaning).

At present, employment tribunals should continue to follow the EAT case law, and the EAT will very likely continue to follow its own case law also. If and when a case is appealed to the Court of Appeal, the latter would not be bound by EAT decisions anyway (nor is it bound under s.6 EU (Withdrawal) Act 2018, because of s.6(4)(c)). The EAT decisions could therefore be reviewed as the Court of Appeal wishes, subject to its own decision in Coffey perhaps, so far as that is a precedent. If and when a case gets to the Supreme Court, that could review the EAT and Court of Appeal decisions as it wishes.

So broadly the Supreme Court and (perhaps to a lesser extent, because of its Coffey decision) the Court of Appeal are not bound by EAT case law. The Supreme Court at least may decide whether to follow the EAT case law or whether to make changes (below How might higher courts alter the position?), applying its own interpretation of the new EqA wording reflecting the EU definition of disability.

After s.6 REUL Act brought into force

When brought into force, s.6 REUL Act will somewhat relax the test for when higher courts can depart from pre-2021 EU court decisions: Retained EU Law Act 2023>Effect of REUL Act: Easier for UK higher courts to override EU cases, and referral system. However, this makes little difference here, as broadly the EU court definition of disability is now reflected in the wording of the EqA.

So far as the Court of Appeal is currently bound by its own decision in Coffey as a precedent (above), I think s.6(5ZA) EU (Withdrawal) Act 2018 (inserted by s.6(4) REUL Act 2023) would give the Court of Appeal somewhat greater flexibility to depart from Coffey, if it wished. The Supreme Court, of course, would not be bound by Coffey at all, but like all British courts would be bound by the new extended EqA definition of disability.

Also, importantly, a lower court which can’t itself overrule pre-2021 EU-related case law – including an employment tribunal bound by pre-2021 EAT decisions – will be able to refer to the Court of Appeal the question of whether it should still follow those decisions. Government law officers such as the Attorney General will also be able to refer the issue. See Retained EU Law Act 2023>Effect of REUL Act: Easier for UK higher courts to override EU cases, and referral system.

It will therefore be easier for cases to get to the level of higher courts, who could review how far existing EAT case law should be followed, in the light of the new EqA wording reflecting the EU definition of disability.

How might higher courts alter the position?

For example, they might decide that normal day-to-day activities need not be found across a range of employment situations, ie that impairments affecting even specialist activities affect one’s “ability to participate fully and effectively in working life on an equal basis with other workers”: below Technical note: Specialised activities. Even if the principle remained that activities need to be found across a range of employment situations, its boundaries very much need clarification.

S.6 EU (Withdrawal) Act 2018 should still apply to this case law, after modification of EqA

S.6(3) EU (Withdrawal) Act 2018 says that in interpreting “assimilated law” (previously called “retained EU law”), UK courts must follow pre-2021 decisions made by the EU Court of Justice, and by UK courts on EU law, subject to certain exceptions. One exception is that the Supreme Court and Court of Appeal need not necessarily follow EU Court decisions. The other exception is that this requirement to follow pre-2021 court decisions does not apply so far as the UK law has been modified after the end of 2020 – unless (says s.6(6) EU (Withdrawal) Act 2018) following the court decision is consistent with the intention of the modification. More above on s.6(3): Pre-2021 EU case law will normally still apply.

The EqA employment provisions seem to be “assimilated law”, so as to fall within s.6(3): Technical note: Why the Equality Act employment provisions are “assimilated law”.

Intention of the regulations

So under the test in s.6(6) EU (Withdrawal) Act 2018, we need to ask whether continuing to follow the pre-2021 case law on the wider meaning of disability is consistent with the intention of the modification of the EqA, ie consistent with the intention of the regulations SI 2023/1425 inserting EqA Sch 1 para 5A. It seems very much yes, it is consistent.

The Explanatory notes to the regulations say that regulation 6, on the wider definition of disability, reproduces the effect of EU court decisions that British EAT cases subsequently applied.

The Explanatory Memorandum to the regulations goes into much more detail. From para 7.22 it summarises the effect of pre-2021 EAT decisions on the meaning of disability. From para 7.55, it goes on to say that regulation 6 maintains this interpretation of the definition of disability in employment claims. (See further above Disability: ‘Normal day-to-day activities>Extended meaning.)

Conclusion on application of s.6

It seems therefore that the s.6 normal rules on how far British courts need to follow EU case law will continue to apply, as this is consistent with the intention of the modification by the regulations.

Technical note: Specialised activities

This technical note supplements At work: Specialised activities above.

The 2011 guidance, quoted below says that activities which are highly specialised, or which involve highly specialised levels of attainment, are not “normal day-to-day activities”, even in employment claims. Examples given in the guidance include:

  • a watch repairer restricted in his ability to carry out delicate work with highly specialised tools
  • playing a musical instrument to a high standard of achievement, at a level to perform to the public
  • playing a sport to a high level of ability, such as would be required for a professional footballer or athlete.

Along the same lines, the EAT in Chief Constable of Dumfries & Galloway v Adams, above, 2009, took from the EU court’s use of the term “professional life” that when assessing whether a person is limited in their “normal day-to-day activities”, it is relevant to consider whether the person is limited in an activity which is to be found across a range of employment situations (above). The EAT said it 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” (my emphasis), which would not be seen as a normal day-to-day activity.

The 2011 guidance (below) at para D10 makes the point, though, that there may be normal day-to-day activities related to specialised work, such as verbal interaction or preparing invoices related to watchmaking.

The 2023 EAT decision of Williams v Newport City Council, below seems to go further. Though not necessary to determine the case, the EAT said that an employment tribunal was entitled to decide, at least on the facts of that case, that attending court was not a normal day-to-day activity – on the basis that it was a specialised activity rather than found across a range of different work situations. However, if the issue had mattered in that case, it seems the EAT would still have overturned the tribunal’s decision that it was not a normal day-to-day activity, because the tribunal had not given sufficient explanation of its reasons for deciding that.

A social worker attending court seems a long way from activities which are “highly specialised or involve highly specialised levels of attainment”, as mentioned in the 2011 guidance. There is little guidance on where the boundaries lie, so boundaries will need to be clarified in future cases. In my view things have been, if anything, confused by the Williams decision, for the reasons listed below. Partly for similar reasons, but also because the Williams decision on this was obiter as it was not necessary to decide the case, the decision is a relatively weak one, which will not necessarily have a large influence in future cases:

  • Firstly, the EAT in Williams did not say whether attending court was or wasn’t a normal day-to-day activity, just that the employment tribunal had been entitled to decide it was not. It was a matter for the employment tribunal’s “factual appreciation and evaluation”, applying the relevant guidelines, to decide which side of the line the case before it fell. This approach, if followed in future cases, may make it difficult to predict whether some activities will be seen as normal day-to-day. However for some other activities, like night working in Adams, the EAT said there would be only one reasonable answer.
  • We don’t have a critique by the EAT of reasoning for reaching a particular decision on the facts of the case, because the employment tribunal in Williams did not give a sufficient explanation of its decision that attending court was not a normal day-to-day activity. It seems the EAT would have overturned the tribunal’s decision on that ground, had the claimant’s appeal in Williams not already succeeded on other grounds (she was held to have a disability anyway).
  • Thirdly, in Williams the EAT did not consider doubts expressed in Banaszczyk v Booker, above, as to how far the exclusion of specialised workers in the 2011 guidance below remains correct. In Banaszczyk v Booker, the EAT rejected the employer’s argument that the work in that case should be equated with that of a specialist worker such as a silversmith or watchmaker under para D8-D10 of the 2011 guidance. However, the EAT judge added at §48: “I confess to some doubt whether the 2011 Guidance relating to specialised activities remains entirely correct in the employment context”, in the light of EU court definition of disability. Courts will now also need to consider this in the light of EqA Sch 1 para 5A, which broadly brings the EU court definition into the wording of the EqA.

Williams v Newport City Council, EAT, 2023
A social worker in a fostering team had been traumatised by an experience in court. The employer introduced a requirement that she attend court if necessary. This would be to defend assessments she had made of people’s suitability to care for a particular child. As a result she went off sick with stress. The EAT held that she was disabled within the EqA even if attending court was not a normal day-to-day activity. She was unable to do her work activities generally while that requirement was in place.

The employment tribunal had decided that the claimant’s attending court was not a normal day-to-day activity. Although this no longer needed to be decided by the EAT (as she had a disabilty anyway), the EAT said the employment tribunal had been entitled to decide that it was not a normal day-to-day activity. The claimant argued that attending court was the sort of thing that forms part of the content of a number of different jobs in different walks of life, particularly in the public sector. The employer acknowledged that being called upon to perform this type of role in court was not unique to this job, but submitted that the tribunal was entitled to conclude that such a requirement was not so commonly found among a range of other work situations as to meet the test. Nor, the employer submitted, was it on any view a normal day-to-day part of the claimant’s own job, given the rarity of the occasions on which it might actually be required of her in practice.

The EAT said that it essentially agreed with the employer’s argument here. The tribunal was entitled to reach the conclusion it did (though the conclusion would be overturned for lack of explanation, see below). Whether attending court was a normal day-to-day activity was a matter for the tribunal’s factual appreciation and evaluation, applying the guidance in case law, to decide which side of the line the case before it fell (though for some other activities only one answer would be reasonable). Here the EAT could not say that the tribunal’s conclusion that the requirement to attend court as necessary as part of the claimant’s role was a specialised activity, was not one that it could have reasonably reached.

However, although the tribunal’s decision that it was a normal day-to-day activity “was not not as such impermissible”, the EAT accepted the claimant’s argument that the tribunal had not sufficiently explained its reasons for this decision. (It seems the EAT would therefore have overturned this decision, if the claimant’s appeal had not already succeeded on other grounds. The EAT would probably have sent the issue back to a tribunal to reconsider.)

The EAT also rejected an argument by the claimant that the underlying tasks involved in attending at court plainly were normal day-to-day activities. so attending court was: above … but there are limits.

The courts will need to clarify where any borders are, in future cases. See also below on my Personal view. However, normally these issues should not arise, as the stammer or other impairment is likely to have a more than minor or trivial effect on one’s ability to carry out activities which are normal day-to-day, if necessary including activities which are fairly clearly found across a range of different work situations, above.

What about public speaking by someone who stammers, if it is a relatively unusual situation, such as in court? See below Public speaking: Unusual situations.

The following is what the 2011 guidance says, but the reservations above must be borne in mind:

D8. Where activities are themselves highly specialised or involve highly specialised levels of attainment, they would not be regarded as normal day-to-day activities for most people. In some instances work-related activities are so highly specialised that they would not be regarded as normal day-to-day activities.
… [Here the Guidance gives the example of a watch repairer carriying out delicate work with highly specialised tools.]

D9. The same is true of other specialised activities such as playing a musical instrument to a high standard of achievement; taking part in activities where very specific skills or level of ability are required; or playing a particular sport to a high level of ability, such as would be required for a professional footballer or athlete. Where activities involve highly specialised skills or levels of attainment, they would not be regarded as normal day-to-day activities for most people.
… [Here the Guidance gives the example of a woman who plays the piano to a high standard, and often takes part in public performances. It says that playing the piano to such a specialised level would not be normal for most people.]

D10. However, many types of specialised work-related or other activities may still involve normal day-to-day activities which can be adversely affected by an impairment. For example they may involve normal activities such as: sitting down, standing up, walking, running, verbal interaction, writing, driving; using everyday objects such as a computer keyboard or a mobile phone, and lifting, or carrying everyday objects, such as a vacuum cleaner.
… [Here the Guidance gives the example of a watch repairer whose impairment means he has difficulty preparing invoices and counting and recording daily takings. These count as normal day-to-day activities, even though the delicate work on watches does not.]
2011 Guidance, para D8 – D10.

Specialised activities: Personal view

I find it difficult to understand why the EAT in Adams above said (if it meant to say) that “professional life” in the EU court’s definition of disability is “plainly” not meant to refer to a special skill case such as a silversmith or watchmaker. The same applies to “working life”, the perhaps broader phrase in EqA Sch 1 para 5A, from January 2024. Whilst this might be interpreted to exclude specialised activities (perhaps on the basis that working life does not mean the specific career the person has chosen?), it might also easily be interpreted more widely, to include specialised activities.

Linked with that, I don’t see a logical cut-off point between activities found across a range of jobs and specialised activities. I don’t see a policy reason, for example, for saying that an impairment is not a disability if it has a substantial effect only in court (Williams v Newport City Council, above) but is a disability if it has a substantial effect only when lifting heavy weights (Banaszcsyk v Booker above).

Also, the examples of specialised activities given in Adams and in the 2011 guidance (above Technical note: Specialised activities) – such as delicate work on watches, and playing music or sport to a high standard – seem to me much more specialised than appearing in court, which anyone may need to do sometime. The claimant in Williams was not even appearing as a trained lawyer. On the basis of the 2011 guidance, though, one might expect appearing in court to be a normal day-to-day activity even of a trained lawyer, unless it was very specialist skills (I can’t think what) that the impairment affected.

A point argued by the employer in Williams v Newport City Council, above, was that attending court was not on any view a normal day-to-day part of the claimant’s own job, given the rarity of the occasions on which it might actually be required of her in practice. Apart from the fact that this is different from whether the activity is common to a range of jobs, note that the promotion exams accepted as normal day-to-day activities in Paterson were only occasional, and the application to become a police constable in Sobhi was described as a “one-off activity” (above Recruitment and promotion: British cases.

Technical note: Public speaking

Public speaking: Generally

As described on this page, there seems to be a strong argument now that in an employment claim, presentations both in work and in the course of recruitment or promotion are to be seen as normal day-to-day activities. In particular, public speaking is an activity found across a range of different work situations, above. This is possibly subject to the point about Unusual situations, below.

Public speaking: Unusual situations

If the setting for the public speaking is fairly unusual, such as in court, the issue may be confused by Williams v Newport City Council, 2023 (above … but there are limits and Technical note: Specialised activities). There, the EAT said a tribunal was entitled to – but not bound to – find that attending court was not a normal day-to-day activity, albeit the tribunal’s decision to that effect in the present case would have been overturned for lack of explanation.

However, the decision in Williams is relatively weak (above). The position may be clarified in future cases. However, even if Williams were right, one might for example argue that in Williams the claimant had a particular issue with courts, whereas a claimant who stammers may well have an issue with public speaking more generally. A claimant who stammers might argue that their case is closer to Aderemi, above, where the claimant would have a problem standing for long periods whether or not there was the relatively unusual feature of needing to maintain a visible presence.

A claimant would normally also argue that in any event, unlike in Williams, the relevant situation should be seen as an activity found across a range of different work situations, above.

See too above Wide meaning of “normal day-to-day activities” often not needed.

Public speaking: Historical note

In previous 1996 Guidance (pre-dating the 2006 and 2011 Guidance), paragraph C19(i) said that it would not be reasonable to regard as having a substantial adverse effect: “inability to speak in front of an audience.” So this was not seen as a normal day-to-day activity.

This bullet point example was changed in the 2006 Guidance to say that it would not be reasonable to regard as having a substantial effect: “inability to speak in front of an audience simply as a result of nervousness.” That wording remains today in the Appendix of the 2011 Guidance. Thus the Guidance no longer says that speaking to an audience is not a “normal day-to-day activity”.

Professor Lisa Waddington commented in a paper in 2007 that stuttering leading to problems with making presentations may meet the ECJ test of disability in Chacón Navas but not the UK test (as then understood, before the case of Paterson, above). Reference: Lisa Waddington, ‘Case C-13/05, Chacón Navas v. Eurest Colectividades SA’ (2007) 44 Common Market Law Review pp. 487-499 (kluwerlawonline.com).

20th anniversary of stammeringlaw, 1999-2019