Making a disability discrimination claim. Does normal day to day activity include work?

It is against the law for employers to discriminate against disabled employees. However if you are an employee looking to make a discrimination claim, you first have to prove that you are, actually, disabled.

Disability is defined as a mental or physical impairment that has a substantial, long-term impact on a person’s ability to carry out normal day to day activities. But what does ‘normal day to day activity’ actually mean?

The Equality Act has long considered this to be the things people do on a regular basis like watching TV, shopping, getting dressed, or going for a walk. However would a condition that stops you from carrying out your job, but doesn’t prevent you from doing all the other things people do on a daily basis, be classed as a disability?

While until now, many tribunals have declared that it doesn’t, a recent employment tribunal case[1] has now decided that it does.

The recent case

In this case, a man was required to lift heavy cases and load them onto pallet trucks.

During his employment, he developed a long-term back condition which meant that - while he could still do this - he was unable to do so at the speed required. He was therefore, dismissed on the grounds of capacity.

Lodging a claim of unfair dismissal and disability discrimination, before his case could proceed, the court first had to consider whether or not he actually had a disability. As his back condition did not prevent him from doing the things most people do on a regular basis, the preliminary hearing found that he did not.

However, the employment tribunal subsequently disagreed, stating that the concept of day to day activities must include the skills needed for normal work. With large numbers of employees carrying out similar lifting tasks every day, the man was therefore classed as disabled.

It’s important to note however, that this case refers only to the common requirements of work, such as lifting or standing for long periods. In other words, work that is carried out by a large percentage of the population. It does not concern those tasks required for more specialist roles.

What does this mean for you?

Employers have a legal duty to make reasonable adjustments to ensure disabled employees are not placed at a substantial disadvantage in comparison to their non-disabled colleagues.

So, for employees struggling with long-term, serious injuries or conditions that hinder them at work, employers must now consider what adjustments they can feasibly make.

With compensation in successful disability discrimination claims being unlimited, if you are an employer trying to understand what you must do to make reasonable adjustments for a disabled employee, or to defend a claim against you, please contact us today.

[1] Banaszczyk v Booker

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