An employee will be considered “disabled” under the Equality Act if the answers to the following questions are “yes”:
- Does the employee have a “physical or mental impairment”?
- Does that impairment have a negative effect on the employee’s ability to carry out “normal day-to-day activities”?
- Is the negative effect “substantial” (i.e. more than trivial)?; and
- Is the effect long-term (i.e. has it lasted or is it likely to continue for a year or more)?
This article focuses on the second question, which was explored in a recent Employment Tribunal and Employment Appeals Tribunal (EAT) case. However, before we get to that case, let’s go back to basics.
Government guidance on disability defines “normal day-to-day activities” as “things people do on a regular or daily basis”, including “general work-related activities”. Normal day-to-day activities do not include activities which are “normal” only for a particular person or group of people. An activity which is highly specialised, e.g. a watch repairer carrying out extremely delicate work with specialised tools, or which requires a special level of skill, e.g. a professional sportsperson, would not be considered a “normal day-to-day activity".
These points are perhaps obvious, but what about activities which are normal and common in certain industries but not in others, e.g. manually lifting heavy weights is not a “normal” daily activity for a solicitor, but it might be for a warehouse operative?
In the recent case referred to above, the employee was a “picker” in a distribution centre. He suffered from a long-term back condition which prevented him from manually lifting heavy items of up to 25kg (but not from doing the rest of his job). He claimed that he was “disabled”.
The Judge at the Employment Tribunal disagreed on the grounds that manually lifting and moving cases of up to 25 kg was not a “normal day-to-day activity".
The employee appealed.
The EAT found that “normal day-to-day activities” extended to warehouse work, which could include heavy lifting. As there was clear medical evidence that the employee’s long-term back condition had a substantial adverse effect on his ability to lift and move heavy cases, the employee was “disabled”.
What does this mean for you or your business?
This case highlights that an employee may satisfy the legal test for disability, and therefore be protected by the Equality Act, even if they generally appear fit and well and you would not consider them to be “disabled” as a matter of general common sense.
You should, therefore, avoid jumping to conclusions about whether an employee is disabled, as the limitations on an employee’s capability may not be obvious but may require further assessment and analysis. You should also remember that the focus should be on what your employee cannot do – not on what he or she can do.
What do you need to be doing now?
Tread carefully and investigate further if one of your employees is struggling (or says they are struggling) to perform an aspect of their day job because of an “impairment” they suffer from, as that employee might just be “disabled”.
This might be by carrying out a risk assessment of their role and/or seeking advice from Occupational Health.
If in doubt, seek legal advice.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.