A social worker had been traumatised by an experience in court. The employer introduced a requirement that she attend court if necessary. As a result she went off sick with stress. The EAT held 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. Though not necessary for the appeal, the EAT also said the employment tribunal (ET) had been entitled to decide that attending court was not a normal day-to-day activity, but had not given sufficient explanation of its decision. Further, the ET held (and it was not appealed) that even if she had no disability, her unfair dismissal claim succeeded since any reasonable employer would have removed the requirement to attend court.
My main comments on EqA aspects of this case are at Disability: ‘Normal day-to-day activities>Technical note: Specialised activities.
The claimant was a social worker in a fostering team. Some of her colleagues undertook “viability assessments” on people’s suitability to care for a particular child, and these colleagues might need to appear in the family court if their assessment was challenged. The claimant’s role did not include this. Nevertheless she had once attended court, in a case she was not directly involved with. Her inability to answer the judge’s questions led to the judge being deeply critical of her, and the experience had left her “traumatised”.
When the claimant’s team manager retired, she was told she would be required to undertake viability assessments, and potentially attend court if any were challenged. She was particularly disturbed by this given her previous experience in court. She was signed off sick with stress from March 2017. She never returned to work, up to her dismissal about 18 months later.
Throughout the 18 months, she remained unfit for work due to her mental health condition, unless the requirement to attend court was removed. The employer insisted throughout that she might be required to attend court.
Held by the EAT: She was disabled within the EqA. This was so even if attending court was not a normal day-to-day activity.
ET: EqA claims
The employment tribunal (ET) rejected her Equality Act (EqA) claims, on the basis that she was not disabled. It decided attending court was not a normal day-to-day activity, and from the end of August 2017 (about 5 months after she went off sick) she was able to do the other parts of her job. Therefore her mental health condition did not have a “long-term” (broadly more than 12 months) substantial effect on her ability to carry out normal day-to-day activities.
ET: Unfair dismissal
The ET allowed her claim for unfair dismissal. Briefly, a reasonable employer in the circumstances of this case would have considered that it could have maintained the claimant’s employment, subject to the very minimal practical alteration to her role of removing court work. This decision of the ET was not appealed.
More fully: The ET said all the indications were that the claimant would be able to return to work if the requirement to attend court was removed from her duties, and yet the employer did not seem to realistically consider whether and how that might be achieved. The employer “seemed, in our view, to focus on the question of disability, and that reasonable adjustments were not required to be made following its conclusion, with which we have agreed, that the Claimant was not disabled for the purposes of the Equality Act.” However, even if the claimant was not disabled, a reasonable employer would nevertheless have considered whether alterations to her role to enable her to remain in work could have been made. The circumstances of the case would have led a reasonable employer to consider that the requested adjustment could have been made. (ET decision §86-88)
The EAT said it seemed to them that the unfair dismissal complaint essentially succeeded because the tribunal concluded that any reasonable employer would have removed the requirement to attend court, thereby enabling the claimant to return to work. (EAT decision §30)
[My comment, below.]
The claimant appealed against the ET decision so far as it rejected her EqA claims. The EAT upheld her appeal:
EAT decision: Claimant was disabled anyway
The Employment Appeal Tribunal (EAT) held that the claimant was disabled within the EqA, even if attending court was not a “normal day-to-day activity”.
The ET had found that from the end of August 2017, apart from attending court, she could have performed her other work tasks if viewed in isolation. However, it was accepted that she was not fit to work, given the council’s refusal to remove the requirement to attend court. While that requirement remained in place, the effect of her impairment was that the requirement caused her such a degree of anxiety that she was unable to return to her job at all. (§26-30)
In the light of the EU court decision in Chacon Navas, her work tasks generally involved “normal day-to-day activities” within the EqA. Her inability to do them was therefore a substantial adverse effect on her ability to carry out normal day-to-day activities (§31). The EAT also concluded that this substantial effect was “long-term”, given the ET’s findings. Accordingly she had a disability within the EqA (§48-54).
The EAT remitted the case to an ET to decide her individual EqA claims (§55-56).
EAT decision: Whether attending court was a normal day-to-day activity
This did not have to be decided, as the EAT had held the claimant to be disabled anyway. However, the EAT did consider the claimant’s arguments that attending court was a normal day-to-day activity, on either or both of two bases:
Activity found in a range of different work situations?
The claimant argued first 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. She submitted, therefore, that it could not be viewed as so specialised and esoteric that it was not a normal day-to-day activity in the work environment.
The EAT quoted Chief Constable of Dumfries & Galloway Constabulary v Adams, 2009. The EAT in Adams had discussed the EU court’s definition of disability (which focuses on one’s ability to participate in professional life) and the EAT decision in Paterson which had widened “normal day-to-day activities” in the British definition of disability to reflect that. The EAT in Adams had said: “What we take from the [EU] court’s use of the term ‘professional life’ is that when assessing, for the purposes of section 1 of the [Disability Discrimination Act 1995], whether a person is limited in their normal day-to-day activities, it is relevant to consider whether they are limited in an activity which is to be found across a range of employment situations. It is 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, to whom we have already referred. It does though, in our view, enable a tribunal to take account of an adverse effect that is attributable to a work activity that is ‘normal’ in the sense that it is to be found in a range of different work situations.” The EAT in the present case also cited the 2011 guidance (§D8-D10) which says that specialised work – such as the delicate work of a watch repairer using highly specialised tools – is not a normal day-to-day activity. [See further Normal day-to-day activities>At work.]
The employer in the present case acknowledged that being called upon to perform this type of role in court (described in §34, quoted below) was not unique to this job. However, the employer submitted that the ET 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 on this point. The ET was entitled to reach the conclusion it did (although it should have given more explanation, below). The EAT said:
36. … In principle, while the tribunal had to apply the guidance in the Chacón Navas and Paterson line of authorities, it was a matter for its factual appreciation and evaluation, applying that guidance, to decide which side of the line the case before it fell. There may be cases where any reasonable tribunal applying the authorities, and taking account of the 2011 guidance, would be bound to conclude that the task was a normal day-to-day activity. Adams [which held night working involving ordinary physical activities to be a normal day-to-day activity] was an example of that. But, in our judgment, in this case we 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.
Secondly, or alternatively, the claimant submitted that the underlying tasks involved in attending at court (listed in §34, below) plainly were normal day-to-day activities. She cited Banaszczyk v Booker, 2016 (Normal day-to-day activities>Time constraint does not affect it being a normal day-to-day activity). In that case, the employee, who worked as a picker in a warehouse, could not, on account of a physical impairment, achieve the required pick rate. The EAT overturned the ET’s decision that the employee was not disabled, as the underlying tasks involved in picking were normal day-to-day activities. The EAT said it was “…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 person’s participation in that activity.”
However, the EAT in the present case rejected this argument, on the facts of the case:
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.
Lack of explanation
Although the EAT therefore found the ET’s conclusion that attending court was not a normal day-to-day activity to be “not as such impermissible”, the ET did accept the claimant’s argument that the ET ought to have explained its reasons for reaching this conclusion more than it did. (§37)
[Comment: Had the appeal not succeeded on other grounds, the EAT would presumably therefore have overturned the ET’s decision that attending court was not a normal day-to-day activity, and remitted this issue to an ET to reconsider.]
EAT decision: Non-work activities
The EAT rejected the claimant’s appeal against the ET’s finding that, after August 2017, her impairment did not have a substantial impact outside of her work environment. (§38-43)
Comments: Normal day-to-day activities
In the context of this website, the most interesting part of this EAT decision is that the ET was entitled to decide that attending court was not a normal day-to-day activity. However this question was not necessary for the EAT’s decision. Also, the EAT would apparently have overturned the ET’s decision that attending court was a normal day-to-day activity, for lack of reasoning, had the issue mattered in this case. My main comments on this case, as regards “normal day-to-day activities”, are at Disability: ‘Normal day-to-day activities>Technical note: Specialised activities.
The claimant’s appeal succeeded despite all this, as the claimant was also unable to carry out her other work activities while the requirement that she attend court remained in place. These other work activities were normal day-to-day activities, so she had a disability within the EqA.
So far as I know, this is the first time an appeal court has indicated (albeit obiter, ie not necessary for its decision) that a particular work activity in the case before it might not be a normal day-to-day activity – at least since British courts have started applying the wider EU court definition of disability.
For example, the EAT in Adams (above Activity found in a range of different work situations?) had said a normal day-to-day activity would not include an activity particularly required by the use of the specialist tools of a silversmith or watchmaker. However, that was an illustration, it was not the situation before the court.
Regulations from January 2024
The EU definition of disability, on which these cases are based, is being preserved by British regulations from 1st January 2024: Disability: ‘Normal day-to-day activities>Extended meaning. In relation to employment discrimination, the regulations expressly give EqA references to a person’s ability to carry out “normal day-to-day activities” a wider meaning, so as to include more generally their ability to participate fully and effectively in working life on an equal basis with other workers.
Relevant to whether one has a disability, rather than to scope of EqA obligations
Whether attending court is a normal day-to-day activity would only be relevant if the stammer or other impairment does not have a more than minor or trivial effect on ability to carry out other normal day-to-day activities. Normally it will have such an effect on other activities, though if not (and if attending court does not count) one would not have a disability within the EqA. See Normal day-to-day activities>Equality Act obligations are not limited to ‘normal day-to-day activities’.
Where someone has a disability within the EqA, an employer has EqA obligations (eg to make reasonable adjustments) as regards court appearances, whether or not these are normal day-to-day activities. Courts themselves also have obligations, though mostly not under the EqA, and so not limited to those with an EqA disability: Appearing in court with a stammer.
Comments: Unfair dismissal
The claim for unfair dismissal did succeed (above). This is of particular interest as it illustrates how, even if a claimant does not have a disability within the EqA, a failure to make a reasonable adjustment can sometimes form the basis of a successful claim for unfair dismissal.
One important point though is that the bar is higher for a claimant in an unfair dismissal claim (Losing one’s job>Unfair dismissal). The employer has more discretion as to what is reasonable. The ET considers whether the dismissal is within the “range of possible reasonable responses” open to an employer, rather than substituting its own view of whether the dismissal should have gone ahead. For example, the ET cannot itself assess (as it would do in an EqA claim,) whether it would have been reasonable for the employer to make a particular adjustment, to avoid the dismissal. In the present case, the ET was able to reach the decision it did because it concluded that in the circumstances of the case, any reasonable employer would have removed the requirement to attend court.
The ET criticised the employer for having focused on the question of disability, and on there being no requirement to make reasonable adjustments following the employer’s conclusion (with which the ET agreed) that the claimant was not disabled for the purposes of the EqA. The ET said that a reasonable employer would nevertheless have considered whether alterations could have been made to her role to enable her to remain in work.
This ET decision is not an appeal decision, and so not a binding precedent. Even so, the EAT cited this aspect of the ET decision in its own reasoning on the EqA issue, and expressed no doubt on it