Chief Constable of Dumfries and Galloway Constabulary v Adams
To prove a complaint under the 1995 Disability Discrimination Act (DDA), claimants have to show that they have an impairment which has a substantial adverse effect on their normal day to day activities. In Chief Constable of Dumfries and Galloway Constabulary v Adams, the Employment Appeal Tribunal (EAT) said that working at night constitutes a day to day activity.
Basic facts
Mr Adams became a probationary police officer in November 2005 and was due to attend a training course the same month. However, when his GP told him he might have bowel cancer he was so upset he did not attend the course. In December, he was diagnosed as having fibromyalgia, later confirmed as ME (myalgic encephalomyelitis).
From December 2005 he had to work a shift system involving two shifts of days, two “back” shifts and two night shifts. He soon found that working nights exacerbated his medical condition, particularly around 2am to 4am. He walked at a slow pace, needed assistance or a hand rail to climb stairs, and at times needed to be driven home and helped with undressing. Between March and May 2006 – when he did not have to work nights - he found that his symptoms disappeared.
In May 2006 he was transferred to Dumfries and resumed the same shift system as before. His symptoms soon returned and again he could sometimes not finish his night shift, even though the chief constable adjusted his working hours so he could finish early (at 4am).
He was dismissed in February 2007 and claimed disability discrimination.
Tribunal decision
The initial question for the tribunal was whether Mr Adams’ impairment had a “substantial and long-term adverse effect on his ability to carry out day to day activities” as required under section 1 of the DDA.
It concluded that walking, climbing stairs, driving and undressing were all plainly normal day to day activities. The tribunal however was required to go further and ask whether carrying out these activities at work between 2 am and 4 am was a normal day to day activity. It found that it was and on that basis, concluded that Mr Adams was disabled for the purposes of the DDA.
Argument on appeal
The chief constable appealed on the basis that Mr Adams could not prove he was affected by his ME when he was not at work. As he only had problems at the end of a night shift there was no evidence that his ME affected his “normal day to day activities.” Mr Adams was in a specialised job requiring him to work at night which was not something that the majority of the working population did.
EAT decision
The EAT agreed with the tribunal. It said that night working is common in the UK among large groups of workers such as those who work offshore, in the health service, in the emergency services and as hotel workers, among others.
Although they did not constitute the majority of the working population, the EAT was satisfied that enough people in the UK worked at night so that working from 2am to 4am could constitute a normal day to day activity within the meaning of section 1 of the DDA.
And when it took account of the fact that the activities that Mr Adams was carrying out when his impairment had an effect on him were the very ordinary activities of walking, stair climbing, driving and undressing, the EAT had no hesitation in finding that the tribunal was correct in coming to its decision.
It accepted that there were plenty of aspects to do with the work of a police officer that would not pass the test of normal day to day activity. However given that the activities that Mr Adams found most difficult were “very ordinary activities” at a time of night when there are many other people in other forms of employment doing the same thing, to its mind this was exactly the sort of circumstances that the DDA should cover.