The issue was whether the claimant had a disability within the Equality Act. The EAT followed the Paterson decision. It said that in deciding if an effect on normal day-to-day activities is substantial (ie more than minor or trivial), the tribunal should look at the effect on that individual’s abilities. The tribunal should not compare the person’s (absolute) level of skills with that of others, including fellow workers. However it might be helpful to look at fellow workers doing similar jobs or tasks in deciding what relative difference in abilities should be seen as within normal variations of people without an impairment.
Employment Appeal Tribunal, 2019. Full decision: www.gov.uk/employment-appeal-tribunal-decisions/mr-i-igweike-v-tsb-bank-plc-ukeat-0119-19-ba
The claimant was refused a bonus because of his performance at work. He argued that his reduced performance was due to a mental health condition following the death of his father, and claimed disability discrimination under the Equality Act.
Employment Tribunal decision and appeal to EAT
The Employment Tribunal rejected his claim. It held he did not have a disability. One reason was that the tribunal rejected the claimant’s argument that lack of concentration at work caused by his condition had a substantial effect on the quality of his work performance. The tribunal decided it “cannot say that the impact of any impairment on the claimant was over and above normal differences in ability”. Accordingly there was no substantial impact on normal day-to-day activities.
The claimant appealed, partly on the ground that the tribunal had erred by looking for some impact “over and above normal differences of activity”. The claimant said this wording (quoted below) derived from Guidance issued by the Secretary of State, and was not part of the statutory test nor a gloss on it, but merely a commentary upon it. The statutory test was that the effect on normal day-to-day activities must be substantial, defined as “more than minor or trivial”. He argued that the effect did not have to impact on his work performance to the point of causing it to dip below the usual (absolute) range of performances among other people, or other people doing this job, so long as it had a sufficient effect on the claimant’s own ability to perform at work.
The 2011 Guidance on meaning of disability says:
“The requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect.”
Para B1 of 2011 Guidance on meaning of disability, discussed by me at Substantial effect>Going beyond normal differences between people: outline.
The EAT also quoted wording very similar to that in paragraph 8 of the Appendix to the EqA Employment Code of Practice.
Other important issues in the case were whether the grief reaction was an “impairment”, and whether any substantial effect was “long-term”.
Employment Appeal Tribunal (EAT) decision on substantial effect
The EAT upheld the tribunal decision. The EAT agreed with the claimant that the effect did not have to impact his work performance to the point of causing it to dip below the usual (absolute) range of performances among other people, or other people doing this job. However normal differences in ability, taking into account fellow workers, could be relevant to some extent – on a relative rather than absolute basis. The Employment Tribunal here had applied the right test.
The EAT followed the decision in Paterson v Commissioner of Police of the Metropolis 2007: see Paterson v Commissioner of Police of the Metropolis>Whether effect is ‘substantial’ – comparison with population at large.
- What is the effect/impact? The EAT said the tribunal must consider the effect of the impairment on that individual. It must “consider what was or would be [the individual’s] degree or level of ability to carry out the activity in question in the absence of the impairment, and what is their altered degree or level of ability to carry out that activity as a result of the effect of the impairment.”
- Is that impact substantial? Having ascertained what is factually the impact, there is the question whether the impact is more than minor or trivial. The EAT said the tribunal “should consider whether that impact, in relation to his ability to carry out this particular activity, was significant for him. How great or appreciable a difference did it make in terms of his ability to carry out this particular activity at work?” (Comment: The activity being considered here was at work, but relevant activities can also be outside work.)
- Means to judge/calibrate impact The EAT said that in this type of case the further question may still arise “as to the means by which the degree, extent or nature of impact on him is to be judged or calibrated, when judging whether it is more than minor or trivial”.
The EAT said that the tribunal need not find that the individual’s performance is so badly affected that it takes him below the range of absolute levels of performance exhibited amongst other colleagues.
Subject to that, when it comes to point 3 above, the position of fellow workers (as opposed to the public at large) is not necessarily irrelevant where they are doing the same or similar jobs, or required to perform the same or similar tasks. In the Paterson case itself, consideration was given to the position of fellow workers required to take the same assessment, and their ability to complete it within a given time constraint. (Note: In Paterson the tribunal had accepted that the claimant should be given 25% extra time in the exam, which the EAT in Paterson said must mean that his impairment had a “substantial” effect.) Considering fellow workers may help the tribunal to assess and calibrate the significance of the impact of the impairment on the individual claimant in relative, not absolute, terms. The tribunal may take into account how the degree or extent of differential in the claimant’s performance (with the impairment versus how it would be without) compares with the degree of differential or variation in performances that might normally be encountered among workers required to carry out this task who do not have the impairment:
“If in a given case, for example, the Tribunal found that an individual’s performance was 50% lower than normal for him, it might readily accept that a reduction of 50% in performance would be significant and unusual for anyone. However, if the Tribunal found that the reduction in his performance was just a few percentage points, it might be assisted in considering whether that was a substantial reduction, by looking at the wider picture of whether a reduction of that more modest level was something that would generally be regarded as significant, if exhibited by someone else who was subject to the same kind of assessment; or whether it would fall within the degree of fluctuation in ordinary performance normally found among those who did not have the impairment.”
In the present case it was open for the tribunal judge to find the claimant did not have a disability. Other forces other than disability impacted on his performance, and the claimant’s performance in the first six months of the year (when he was still on track for a bonus) could have been close to the line, but above it, and at the end of the year close to the line, but below it.
Comment: Difference made to that individual’s abilities
The most important point is that the EAT followed the EAT decision in Paterson. This is welcome. One should look at the effect of the impairment on that individual’s abilities rather than comparing their (absolute) level of ability with others. As the Paterson case points out, this is particularly important for highly able people such as a senior police officer, or someone with the skills to be a highly successful accountant.
Comment: Relevance of other people’s abilites, in a “relative” way
Update: The EAT has since discussed similar issues in Elliot v Dorset County Council, 2021.
General principle: Going beyond normal differences
Less important, and more difficult, I think, are the EAT’s views on how it may be helpful to look at fellow workers doing similar jobs or tasks, to see if the relative difference between the claimant’s abilities with and without the impairment falls within the degree of fluctuation in ordinary performance normally found in people without the impairment. The EAT did not say this comparison with fellow workers need necessarily be made, but thought it may help. The main thrust of the EAT’s decision was that the Employment Tribunal in this case did not make an error of law by taking fellow workers into account – though the EAT placed a limit on how far that can be done
The Paterson case and other previous EAT cases agree with Igweike about focusing on the difference in the individual’s abilities with versus without the impairment, but have gone further by saying that if that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are substantial: ‘Substantial effect’>Going beyond normal differences between people. The Igweike case just suggested looking at fellow workers doing similar tasks rather than a cross-section of the population, and saw the comparison as a helpful factor rather the determining one. Also, so far as I know, EAT cases before Igweike have not really tried to discuss how the comparison should work.
Application to stammering
Before discussing what the Igweike case said on this, let me say first that the detailed discussion in this case – with its example on percentage differences – doesn’t really seem relevant to stammering. I think differences in the way people who stammer speak are not quantitative but qualitative. For example a person without an impairment does not have difficulty getting a simple word out, if they know what they want to say, or regularly switch words to things they can say fluently. Whatever view one takes of the issues discussed in Igweike, and even ‘relative’ versus ‘absolute’ differences, I would argue that an impairment such as stammering will generally go beyond the normal differences in people without an impairment, whether in the general population or fellow workers: ‘Substantial effect’>Going beyond normal differences between people.
Discussion in Igweike on how the ‘normal differences’ principle would work: Percentages
The EAT gave an example of a percentage difference in performance due to an impairment. The EAT said that if the tribunal found the individual’s reduction in performance was just a few percentage points, it might be helpful to consider whether that reduction would generally be regarded as significant, if exhibited by someone else subject to the same kind of assessment, or whether that reduction would fall within the degree of fluctuation in ordinary performance normally found among those who did not have the impairment.
It needs to be remembered that in this case the discrimination alleged was not being awarded a bonus. It therefore related specifically to work performance, being measured by the employer using some system. Also the claimant does not seem to have brought evidence of effects of the impairment outside work. Perhaps in this case, and some others, it may be feasible to measure effects of the impairment – or at least some of them – as a percentage.
However that may often not be the case. Very often (including with stammering, above) it is not a percentage reduction in ability – or at least any measurement in percentages does not tell the whole story.