The EAT agreed with the lower tribunal that housework should not be taken into account as a ‘normal day-to-day activity’ in the case of the claimant, since he did not in fact do it.
Employment Appeal Tribunal, 2006. Full decision bailii.org.
The claimant had pain in his right hip and back. His employment as a postman was terminated on grounds of ill health.
Amongst other things, the claimant argued that he could not do any housework because of difficulty in squatting and kneeling, and that this was a substantial effect on his ability to carry out a normal day-to-day activity.
The employment tribunal rejected this argument because housework was not in fact something the claimant did. He employed his niece to do it for him, who was anxious to earn some money.
Claimant’s argument on appeal
The claimant argued before the EAT that the employment tribunal had wrongly taken a subjective, not an objective view of what is a ‘normal day-to-day activity’. The claimant pointed to paragraph C2 of the 1996 Guidance on meaning of disability, and to case law. Paragraph C2 says that ‘normal day-to-day activities’ is not intended to include activities which are normal only for a particular person or group of people, and therefore account should be taken of how far it is normal for most people and carried out by most people on a daily or frequent and fairly regular basis.
Employment Appeal Tribunal decision
The EAT rejected the claimant’s argument and upheld the employment tribunal decision. Since the claimant did not in fact do housework, it was right not to take it into account as a normal day-to-day activity. The EAT said:
“…As is reflected in paragraph C2 of the [1996] Guidance, a person will not be treated as disabled because he is substantially impaired in his ability to carry out an unusual activity even if it is an activity that is normal for him. However, it is not a corollary of that that where a person does not, as part of his daily life, carry out an activity that is normal for others, that he is to be treated as disabled if he would not be able to do it, which was the thrust of Mr Marshall’s submission on this matter If Mr Marshall were correct, the reference in [s.1 DDA ] to the matter of the extent of person’s impairment would be otiose…. He sought to apply to the claimant’s position regarding housework the same considerations as would require to be applied in a case where the reason that a person does not carry out a particular day-to-day activity is that they have adjusted their lifestyle so as to accommodate an impairment from which they suffer in a way which, by the relevant date, has come to exclude that activity. That is the sort of case which was considered in Goodwin v The Patent Office and is quite different from the circumstances that the tribunal had to consider here.” (paras 29 and 30)
My comments
First it is important that the Vance decision did not critisise Goodwin v The Patent Office. The EAT in Vance seems to have accepted that it is possible for something to be a normal day-to-day activity “where the reason that a person does not carry out a particular day-to-day activity is that they have adjusted their lifestyle so as to accommodate an impairment from which they suffer in a way which, by the relevant date, has come to exclude that activity.”
The description in Vance of the kind of activities taken into account under Goodwin perhaps envisages activities which the person did do, but no longer does because of an impairment which has since happened. This is appropriate to the facts of the Vance case., However, the Goodwin decision does not seem to be limited to that kind of situation. A person who developed a stammer at age 3, for example, may have avoided a certain kind of speaking situation because of the stammer all their life. I cannot see that the Vance decision intended to stop that situation from being a normal day-to-day activity. The phraseology in Vance reflects the particular case the EAT was considering. Bear in mind too that paragraph B8 of the 2006 Guidance on meaning of disability now says: “It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person.”
However, the Vance decision is open to criticism in the area where it does apply – where the person is not avoiding an activity because of the disability. I believe there is doubt as to whether the Vance decision will be followed in future appeal cases:
- The Goodwin decision is based on interpreting the DDA to mean that “In order to constitute an adverse effect it is not the doing of the acts which is the focus of attention but rather the ability to do (or not to do) the acts…” This reflects the language of DDA s.1 which talks in terms of ‘ability’ to do, rather than actual doing. That reasoning in Goodwin does not seem to apply only to activities avoided due to the disability. The reference in DDA s.1 to how far ‘ability’ is impaired is not otiose if one takes into account activities the person does not do.
- If one follows the Vance decision, what happens if the claimant’s niece in this case moves away, and he would now like to do his own housework and can’t, or does it only with difficulty. Does he suddenly become disabled within the DDA? Or what if the division of labour between two spouses is that one does housework and one has paid employment? Say (very theoretically) both then get the same impairment, affecting ability to do housework. Does the one who happens to do the housework have a disability, but not the one who is in paid employment? What if the latter then, like the claimant in this case, loses her or his job because of the disability (no DDA claim as no ‘disability’) and then wants to take a share of the housework. This kind of thought experiment shows that basing the issue of whether a person has a disability on current circumstances, as the Vance decision seems to do, produces odd and capricious results.
Paragraph C2 of the 1996 Guidance (and the 2006 Guidance – see Normal day-to-day activities) appears to take an objective population standard as to what is ‘normal, day-to-day’. The test is not what is ‘normal, day-to-day’ for the particular individual. It seems more consistent with that interpretation not to restrict oneself to what the particular individual does.
