Disability: ‘Normal day-to-day activities’

This page looks at what are ‘normal day-to-day activities’. The phrase is much wider than you’d expect. It is relevant because the main requirement for a stammer to be a ‘disability’ within the Equality Act is that it must have a “substantial adverse effect on the person’s ability to carry out normal day-to-day activities”. A separate page looks at what is a ‘substantial effect’.

Summary

The main precondition for a stammer to be a ‘disability’ within the Equality Act is that it must have a substantial adverse effect on the person’s ability to carry out ‘normal day-to-day activities’.

Remember that claims under the Equality Act are not limited to ‘normal day-to-day activities’. A disabled person 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 Equality Act: see below Equality Act obligations are not limited to ‘normal day-to-day activities.

• ‘Normal day-to-day activities’ has a very wide meaning if one is claiming against an employer. It is much wider than would be expected from the words themselves. Below EU law: ‘normal day-to-day activity’ is very wide in employment claims.
• Both work and non-work activities can be ‘normal day to day activities’. ‘Normal’ (below) means not abnormal or unusual for people generally (it is not judged by what is normal for a particular individual). In employment claims a work activity does not actually have to be ‘day-to-day’.
• Cases and guidance have said that a work activity is seen as ‘normal’ (below) if it is found in a range of different work situations, eg phone calls. This will include most speech situations. However, ‘normal day to day activity’ may go further – it has yet to be decided whether EU law requires that ‘not normal’ specialist activities be included, such as silversmithing, or playing the piano to concert pianist standard. In any event, the courts have held that a high level promotion exam is a ‘normal day-to-day activity’ in an employment claim, and even a job application: below Recruitment and promotion.
  • The very wide meaning of ‘normal day-to-day activity’ is because under EU law (below) a disability is, broadly speaking, any long term impairment which hinders full and effective participation in professional life. Accordingly, in an employment claim it can be argued that an activity is ‘normal day-to-day’ if it is relevant to participation in professional life.
  • Even without the wide meaning, in most (perhaps all) cases a stammer is likely to have substantial effects on very normal, standard day-to-day activities. Therefore the wide meaning will not normally be needed in practice: below Is the meaning of ‘normal day-to-day activities’ important?
• 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
  • probably job interviews or giving presentations, if the claim is against an employer – see below Recruitment and promotion
  • probably communicating by radio, if the claim is against an employer, on the basis that it is found in many jobs – see below At work.
• For non-employment claims, such as claims against service providers, the not quite so wide and more commonsense definition in the 2011 official guidance of what is a normal day-to-day activity is more likely to apply. That is still fairly wide but would not include job interviews for example. Below EU law: non-employment claims.
• The activity should be described in a broad way rather than too narrowly, eg ‘sitting for long periods’ rather than ‘sitting to drive a bus over an eight hour shift’. This makes it more likely to be a ‘normal day to day activity: below Keeping description of the activity fairly general.

Remember that one does not look across the range of activities and compare what a person can and cannot do. The focus is on what activities the person cannot do, or has difficulty with (see separate page Substantial effect>Focusing on what the person has difficulty with), whether outside work or in work, even if the claim is for employment discrimination.

A few case examples:

Paterson v Commissioner of Police of the Metropolis, Employment Appeal Tribunal, 2007
A high pressure written exam for promotion was held to be a normal day-to-day activity. The claimant’s dyslexia was held to be a disability, despite the high quality of written work he had produced as a chief inspector.

Chief Constable of Dumfries & Galloway v Adams, Employment Appeal Tribunal, 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 in the nighttime.

Aderemi v London and Southeastern Railway, Employment Appeal Tribunal, 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.

Banaszczyk v Booker, Employment Appeal Tribunal, 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).

Is the meaning of ‘normal day-to-day activities’ important?

In a sense ‘no’, at least for work activities, because ‘normal day-to-day activities’ is very wide – wider than one would expect from the words. So it does not restrict the definition of ‘disability’ all that much. In a way the most important thing is to remember 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 he has a disability, the claimant must show there is a substantial effect on his 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 normal day-to-day. However at least as regards work activities, at appeal level the employers’ arguments have tended to be unsuccessful – and employment tribunals should of course follow what appeal cases have decided.

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 substantial, meaning ‘more than minor or trivial’.

Commissioner of Police of the Metropolis v Ekpe, Employment Appeal Tribunal (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 (possibly all) 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 to point out, for example, that a job interview, or making a presentiation, should be a normal day-to-day activity in the context of an employment claim, and you have particular difficulties there (below: 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.

EU law: ‘normal day-to-day activity’ is very wide in employment claims

European Union (EU) cases have 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 – see the Ring case below.

EU law applies mainly to employment claims. In an employment claim therefore, the EU case law can be very helpful in arguing that a work activity is ‘normal day-to-day’ activity (see further below Recruitment and promotion and At work):

• EU case law was used by the UK Employment Appeal Tribunal (EAT) in Paterson in 2007 to hold that taking a high level promotion exam was a normal day-day-activity. It said the court should “[give] a meaning to day-to-day activities which encompasses the activities which are relevant to participation in professional life.”
• Later, the EAT in Chief Constable of Dumfries & Galloway v Adams (2009) and subsequent cases have interpreted EU case law as making activities ‘normal day-to-day’ if they are found in a range of different work situations, for example working at night, or lifting heavy weights up to 20kg in Banaszczyk v Booker (2016). In the latter case the EAT also left open that EU law may go further and require even specialist activities 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’.
• In Sobhi v Commissioner of Police of the Metropolis a one-off job application was considered a normal day-to-day activity.

The main European Court decisions helpful in arguing that a work activity is ‘normal day-to-day’ are Ring v Dansk almennyttigt Boligselskab (2013) and Chacón Navas (2006):

Ring v Dansk almennyttigt Boligselskab, 2013, Court of Justice of the European Union (CJEU)
Modifying the previous definition it gave in Chacón Navas (2006), the European court said 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….”

The CJEU’s decision in Chacón Navas (2006) similarly saw a disability as something which “hinders participation in professional life”, but 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.

EU law: non-employment claims

This exceptionally wide meaning probably does not apply for non-employment claims falling outside the scope of EU law, such as a claim against a service provider. The EAT in Banaszczyk v Booker suggested that the unusually wide meaning of ‘normal day-to-day activity’ may be limited to claims relating to employment or occupation within the scope of the Framework Employment Directive. For claims not relating to employment and occupation, the not quite so wide, more commonsense definitions of ‘day-to-day’ (below) and ‘normal’ (below) in the 2011 official guidance (quoted at those links) is more likely to apply.

‘Day-to-day’ activities

Employment claims

In the light of the EU case law above, the courts have taken a broad approach to this in employment claims:

Paterson v Commissioner of Police of the Metropolis, Employment Appeal Tribunal, 2007
The EAT held a high pressure written exam for promotion was a normal day-to-day activity. The claimant had dyslexia.

The EAT said: ‘In our view carrying out an assessment or examination is properly to be described as a normal day to day activity. Moreover, as we have said, in our view the act of reading and comprehension is itself a normal day-to-day activity…’

If taking an exam is a ‘day-to-day’ activity, it is a wide concept indeed. In a 2013 case, the EAT went even further to hold that a one-off job application could be a normal day-to-day activity:

Sobhi v Commissioner of Police of the Metropolis, Employment Appeal Tribunal, 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.
There is an issue whether this case is consistent with a previous EAT case, and if not which should prevail. See below Specific job applications as a normal day-to-day activity?

Non-employment claims

The 2011 Guidance takes a rather more limited approach than the Paterson and Sobhi cases. In non-employment cases (where EU law is not there to require the courts to override the guidance) the concept of ‘normal day-to-day activity’ in the guidance is more likely to apply (Banaszczyk v Booker, 2016). Even so, the guidance is not binding on the courts (Legal effect of statutory guidance and codes), unlike appeal decisions which bind the lower courts.

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 given 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’

Note that in employment claims the requirement that an activity be ‘normal’ may have little or no meaning as regards work-related activities, in the light of EU law: see below Recruitment and promotion and At work.

‘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, Employment Appeal Tribunal, 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).”

‘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 puts 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.

At work

This section focuses on activities in the job itself. There is a separate section below on Recruitment and promotion.

Following the approach of the Ekpe case (above), starting with Chief Constable of Dumfries & Galloway v Adams (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. However, in Banaszczyk v Booker, 2016, the Employment Appeal Tribunal left open that other specialist activities not found across a range of work situations may also be included, in the light of EU law – eg silversmithing or a concert pianist: see below At work: 2011 Guidance on ‘normal’ versus specialised activities.

First though, some cases on activities found across a range of different work situations, as is the case with many activities:

Chief Constable of Dumfries & Galloway v Adams, Employment Appeal Tribunal, 2009
The EAT held that ordinary physical activities during a night shift were normal day-to-day activities. The claimant had ME, and had particular difficulties in the nighttime. The EAT said that night shift working is common in the UK.

This was ‘normal’ in the sense that it is to be found in a range of different work situations. The EAT contrasted it with a “special skill case such as the silversmith or watchmaker who is limited in some activity that the use of their specialist tools particularly requires”. There the specialist activity would not be a ‘normal day-to-day activity’.

Aderemi v London and Southeastern Railway, Employment Appeal Tribunal, 2012
A station assistant had to stand for long periods, for example at the 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 one’s feet for lengthy periods of time.
More on this case below: Wide description of activity.

Banaszczyk v Booker, Employment Appeal Tribunal, 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). 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.”
More on this case below Time constraint does not affect it being a normal day-to-day activity.

EU law (above) is helpful in broadening the scope of ‘normal day-to-day activity’ in employment claims. In non-employment claims the meaning of normal day-to-day activity might not go quite so far. For example in Banaszczyk v Booker the court used EU law to overrule what Britain’s 2011 official guidance said about lifting heavy weights not being a normal day to day activity.

At work: 2011 Guidance on ‘normal’ versus specialised activities

The 2011 guidance says that specialised activities such as work with highly specialised tools (eg a silversmith or watchmaker) or playing a sport or an instrument to a high standard is not a normal day-to-day activity. However it is unclear whether this remains correct in the light of EU law (above). The court in Banaszczyk v Booker expressed some doubt as to whether the 2011 guidance on this remains entirely correct. The following is what the guidance says, but those reservations 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 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.

At work: Some examples relevant to stammering

Paragraph D10 of the 2011 Guidance mentions “verbal interaction” at work as an example of a normal day-to-day activity (above At work: 2011 Guidance on ‘normal’ versus specialised activities).

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 Guidance) of what seem likely to be normal day-to-day activities.

Phone calls generally.

Where a person who stammers in an open plan office has increased difficulties with phone calls because he 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.
Giving presentations might seem an odd ‘normal day-to-day activity’. However it is common to many jobs, and at least in employment claims its inclusion would be supported by Ring (above EU law). See also below More on public speaking.

Where background noise makes speech more difficult.
Para D20 of the 2011 Guidance gives an example on background noise being taken into accout in assessing effects of tinnitus.

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).
Night shift working was considered to be a normal day-to-day activity in Chief Constable of Dumfries & Galloway v Adams.

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.

More on public speaking

Previous 1996 Guidance (pre-dating the 2006 and 2011 Guidance) said that speaking to an audience was not a normal day-to-day activity. 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.”

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. This implies that speaking to an audience can be a ‘normal day-to-day activity’, at least in some circumstances.

As described on this page, there seems to be a strong argument now that presentations both in work and in the course of recruitment or promotion are normal day-to-day activities in the context of employment claims, given that EU law applies there.

Also Prof. 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 Paterson case). Reference: Lisa Waddington, ‘Case C-13/05, Chacón Navas v. Eurest Colectividades SA’ (2007) 44 Common Market Law Review pp. 487-499 (kluwerlawonline.com).

Recruitment and promotion

There seems to be a strong argument in the light of Paterson and Sobhi below that job interviews are normal day-to-day activities in the context of an employment claim. The same applies to giving a presentation, or probably other parts of a recruitment or promotion process which involve speech. (For non-employment claims, such as a claim against a service provider, a job interview may well not be a normal day-to-day activity because EU law does not apply.)

Paterson v Commissioner of Police of the Metropolis, Employment Appeal Tribunal, 2007
The EAT held a high pressure written exam for promotion was a normal day-to-day activity. The claimant had dyslexia, and was held to have a disability, 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 (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 definition of disability was modified in Ring v Dansk almennyttigt Boligselskab, 2013. However, the modified definition retains the emphasis on participation in professional life. Accordingly the decision in Paterson is still valid. Indeed, the Paterson case was applied and re-affirmed in the light of the Ring case in Sobhi v Commissioner of Police of the Metropolis 2013, discussed below.

The Paterson case talked about promotion. However, applying Ring and the Chacón Navas case, the same logic seems to apply to recruitment, and to activities in the job itself (above At Work). Job interviews for example are very relevant to participation in professional life, probably more so than high pressure written exams, and the EAT in Sobhi below held that a job application should be treated as a normal day-to-day activity.

It may well be necessary to put to an employment tribunal the legal reasons why a job interview, for example, should count as a normal day-to-day activity. In M v Manchester Rusk Co, 2023 the tribunal said – without giving reasons – that job interviews and the recruitment process were not normal day-to-day activities. However no arguments seem to have been put to it on this.

Examples of activities that seem likely to be normal day-to-day activities, on the basis of Paterson and Ring:

Job interviews

A presentation as part of a recruitment or promotion process
As mentioned above in At work: Some examples relevant to stammering, other presentations also seem likely to be normal day-to-day activities. See also above More on public speaking.

Oral assessents in a recruitment or promotion process

Generally it should not really 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 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. After all, it is a situation where the employer will often have seen the stammer. Having said that, since there is no case law directly on job interviews (so far as I know), the employer may try to argue a job interview is not a ‘normal day-to-day activity’, despite the strength of the legal argument based on Paterson. I find it difficult to see though how such an argument by the employer would succeed.

It may be particularly difficult for an employer to argue there is no disability if there is evidence that it saw the job applicant’s speech difficulties at the interview as a problem (ie more than minor or trivial, and therefore substantial) – given that a job interview is likely to be 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.

Specific job applications as a normal day-to-day activity?

In Sobhi (2013) the EAT held that a one-off application to become a police constable could be a normal day-to-day activity. The EAT commented that apart from EU law, one might distinguish this from exams for promotion as discussed in the Paterson case above, as these exams would be intermittent rather than one-off. The EAT nevertheless held that because of EU law, the job application should be seen as a normal day-to-day activity:

Sobhi v Commissioner of Police of the Metropolis 2013, Employment Appeal Tribunal (EAT)
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.

However it has been 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), 2009, Employment Appeal Tribunal (EAT)
A special constable had impaired vision in one eye, and so did not meet the standard set under regulations to progress to being a regular constable. The EAT rejected an argument that the claimant’s rejection as a police constable (because of the medical regulations) itself constituted a substantial adverse effect. It commented that an impairment is not seen as having a substantial effect just because an employer turns the person down because of it.
The Court of Appeal in Coffey, 2019, commented that this decision seemed to be right.

If the EU Court of Justice considered the failure to meet prescribed medical standards in Lothian and Borders v Cumming, in the light of Ring, it seems to me quite possible the EU Court would see it as involving a ‘disability’.

In any event, the Lothian Police v Cumming case does not affect the discussion on this page about common recruitment activities such as job interviews and presentations being normal day-to-day activities. I suggest that Sobhi is different from the Lothian case in that the impairment in Sobhi affected part of the activities of the recruitment process, namely answering questions accurately.

Keeping description of the activity fairly general

How ‘normal’ or ‘day-to-day’ an activity often depends on how one describes it. There are cases which suggest that one should take a high level, general description, which makes it easier for the activity to be ‘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, 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, Employment Appeal Tribunal, 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, 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 employee 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, and indeed the EAT has confirmed that it should not alter the fact that something is a normal day-to-day activity:

Banaszczyk v Booker, Employment Appeal Tribunal, 2016 (also 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.”

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:

Cruickshank v VAW Motorcast, Employment Appeal Tribunal, 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’ in any event, even if one sees the environment as part of the activity. However, the Cruikshank case can give an additional argument to counter any contention of an employer that difficulties in a particular situation are not taken into account towards the stammer being a disability.

Phone calls in an open plan office, or in a hectic atmosphere seem likely to be normal day-to-day activities anyway (see the stammering examples above). However, even if it those environments were too unusual to be ‘normal’, 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’ – overt stammering>Variability.

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 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.

Equality Act obligations are not limited to ‘normal day-to-day activities’

Much of this page discusses how far work-related activities are ‘normal day-to-day activities. But remember that this is only relevant for the definition of ‘disability’. The reasonable adjustment duty and other Equality Act obligations apply to any work activity, whether or not it is ‘normal day-to-day’.

A person has a disability as defined in the Equality Act – their impairment has a substantial 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 Equality Act obligations also apply to the specialist work.

So in discussing what work-related activities are normal day-to-day activities, we are looking at a relatively limited question: if a stammer does not have sufficient effect (including hidden effects) in relation to other normal day-to-day activities, how far can its effect in relation to work activities be taken into account?