Labour & European Law Review Weekly Issue 313 04 April 2013
To be classed as disabled under the Equality Act 2010, claimants have to show that their disability has a substantial, long-term adverse effect on their ability to carry out normal day-to-day activities. In Aderemi v London and South Eastern Railway Ltd, the Employment Appeal Tribunal (EAT) held that, when assessing whether it did or not, tribunals must concentrate on what the claimant could not do, as opposed to what they could do.
Mr Aderemi started work as a station assistant at London Bridge in September 2003. This involved checking passengers’ tickets, operating the automatic gates and undertaking some light duties, all of which meant he had to be on his feet for substantial periods every day.
Towards the end of 2007, he started complaining of lower back pain and went on sick leave in August 2009. He returned to work in November but went off again in March the following year. In April an occupational health doctor found that he had significant restrictions in his mobility with a high level of discomfort.
He was asked to attend a meeting to discuss his absence on 19 October, after which his employer concluded that he was not capable of doing his job. Following a report from the company’s medical officer which said that it was unlikely that Mr Aderemi would be able to return to his substantive post in the foreseeable future and as there were no alternative jobs, he was dismissed on 28 October. He made a tribunal claim for disability discrimination and unfair dismissal.
The tribunal held that Mr Aderemi was not disabled because the impairment caused by his condition did not have a substantial, long-term adverse effect on his ability to do normal day-to-day activities.
In coming to that conclusion, it looked at what he could do such as walk around; carry a tray; carry items without serious weight; wash up; put shoes on, as opposed to what he could not do such as bending down too low or too much and struggling to lift and carry heavy items.
Mr Aderemi appealed to the EAT on the basis that the tribunal should have concentrated on the activities he could not do, rather than on the things he could do.
And the EAT agreed that the tribunal had taken the wrong approach.
It held that it should first of all have established whether the impairment had an adverse effect on Mr Aderemi’s ability to carry out normal day-to-day activities before looking at whether the effect was substantial or not. In other words, whether it was more than minor or trivial.
In making that decision, the EAT said that tribunals should be clear that there was little room for any form of sliding scale between the two, despite the government’s guidance which gave the impression that there was.
The Act itself did not create a spectrum running from “matters which are clearly of substantial effect to those matters which are clearly trivial”. Instead, it provided for a “bifurcation” - unless a matter clearly came within the heading "trivial" or "insubstantial", it must be treated as substantial.
“As a matter of first principle when considering the statute, this requires the focus of the Tribunal to be not upon that which a Claimant can do but that upon which he cannot do. It is what he cannot do that requires to be assessed, to see whether it is truly trivial and insubstantial or whether it is not”.
As the tribunal had taken the wrong approach when deciding the question of disability, the EAT remitted the case back for a re-hearing.