The EAT again extended the normal meaning of ‘normal day-to-day activity’ in the light of European law. The EAT held that applying to become a police constable was a ‘normal day-to-day activity’. 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 the DDA 1995.
Employment Appeal Tribunal, 2013. Full judgment: bailii.org.
A police community support officer applied for a job as a police constable. She failed to disclose a previous conviction for theft.The previous conviction was discovered through a finger print check. As a result she did not get the promotion, and received a disciplinary reprimand. Some months later, she was again turned down for the role of police constable.
She argued she had forgotten the previous conviction because of dissociative amensia, and made a claim under the Disability Discrimination Act 1995. The issue in this appeal was whether she had a ‘disability’. The medical evidence was that her loss of memory related only to her ability to recall events around the time of her arrest and conviction in 1991. The medical expert said he did not think the relatively small gap in her past remote memory affected the day-to-day functioning of her memory, or that it had any implications for her ability to perform well as a police constable now.
The employment tribunal held she did not have a disability within DDA 1995, as the amnesia did not have a substantial adverse effect on her ability to carry out normal day-to-day activities.
Decision of the Employment Appeal Tribunal (EAT)
The EAT held she did have a disability, because of the effect of the amnesia on her professional life.
Apart from previous case law, one might think that applying to become a police constable was not a normal day-to-day activity. It was a ‘normal’ thing for a police community support officer to do, but it did not seem to be ‘day-to-day’.
However, the EAT in Paterson v Commissioner of Police of the Metropolis, which concerned an exam for promotion, had said that carrying out an assessment or examination was properly to be described as a ‘normal day-to-day activity’. So according to the EAT in that case, the fact that an activity is performed only intermittently does not make it any the less a day-to-day activity. On the other hand, taking exams for promotion at various stages of one’s career, in other words intermittently, could be said to be unlike Ms Sobhi’s application to become a police constable which was a one-off activity.
Secondly, though, the Chacón Navas decision by the EU Court of Justice had led the EAT in Paterson to decide that day-to-day activities should encompass activities which are relevant to participation in professional life, so as to give effect to EU law. In the present case, the EAT commented:
18. I see the force of all that. All the more so now that the European Court of Justice in HK Danmark v Dansk Almennyttigt Boligselskab … only last month reaffirmed the principle in Chacón Navas by reference to the need for the Directive to be interpreted in a manner which is consistent with the United Nations Convention on the Rights of Persons with Disabilities. You look to see whether the impairment which the worker has may hinder their full and effective participation in professional life on an equal basis with other workers.
19. What all of that means is this. Although Ms Sobhi’s loss of memory was limited to just one aspect of her past, her loss of memory in that respect had an adverse and long-term effect on any activity of hers which required her to recall whether she had any previous convictions. One of those activities was applying to become a police constable. That was an activity to which the definition of disability in section 1(1) of the 1995 Act should be treated as applying because, despite its language, a person must be regard as a disabled person 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. Such an activity must include Ms Sobhi’s application to become a police constable.
This is an important further development in applying EU law, and indeed the UN Convention, to extend the British concept of ‘disability’.
However there is the issue of whether the case is compatible with the earlier EAT decision in Lothian and Borders Police v Cummings (link to bailii.org), 2009. If not, there is the question which case should prevail. See ‘Normal day-to-day activities’>Specific job applications as a normal day-to-day activity?.
Also how far does this case go? Does it mean that if an employer turns a person down for a job because of an impairment, then the impairment does have the required adverse effect on ability to apply for a job? Again see ‘Normal day-to-day activities’>Specific job applications as a normal day-to-day activity?.