Labour & European Law Review Weekly Issue 463 30 March 2016
To be protected under the terms of the Equality Act, workers have to show that they have a “physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.” In Banaszczyk v Booker, the Employment Appeal Tribunal (EAT) held that in the context of work, a normal day-to-day activity could include lifting and moving heavy cases.
Mr Banaszczyk worked as a picker in a distribution centre which involved moving cases weighing up to 25 kilograms by hand onto pallet trucks. Workers were expected to pick about 210 cases per hour, or at least achieve a minimum “pick rate” of 85 per cent of that figure.
In February 2009, Mr Banaszczyk injured his back in a car accident which resulted in a number of absences from work over the next few years. By late 2012, he was diagnosed with a long-term back problem which meant he could only achieve the pick rate for half the time, although he could do other light duties. Occupational health concluded in February 2013 that he was unlikely to ever meet the pick rate target and would probably have to have more time off work. He was dismissed because of incapacity in July 2013.
Mr Banaszczyk brought claims of unfair dismissal and disability discrimination.
The tribunal accepted the medical evidence that Mr Banaszczyk’s injury had impacted on his physical ability to do his work, but did not accept that it had affected his activities outside work in that he could go shopping, was learning to drive and had been well enough to fly to Poland.
It concluded that Mr Banaszczyk was not a disabled person within the meaning of the Equality Act 2010 because his long-term physical impairment did not have a substantial effect on his ability to carry out normal day-to-day activities.
Mr Banaszczyk appealed on the basis that the concept of “normal day-to-day activities” also includes the skills required for work.
The EAT held that as the tribunal judge had accepted the medical evidence, Mr Banaszczyk was disabled for the purposes of the Equality Act 2010. The next question was whether his physical long-term impairment had a substantial adverse effect on his ability to carry out normal day-to-day activities.
The EAT held that, in the context of work, a normal day-to-day activity could include lifting and moving cases of up to 25 kilograms, not least because a large number of people across a range of occupations (particularly those related to warehousing and distribution) were employed to do just that. The EAT rejected the employer’s argument that the pick rate constituted the activity and warned against confusing a particular requirement of an employer to do something at a particular speed (which in fact was the barrier to the disabled person being able to do the activity) with the activity itself.
It then considered whether the effect of the impairment was substantial which, it said, had to be based on the time taken to perform an activity. It concluded that as Mr Banaszczyk was significantly slower than others - and significantly slower than he would himself have been but for the impairment - when carrying out the activity of lifting and moving cases, the effect was substantial.
It therefore allowed his appeal.