Disability Discrimination: day to day activities
Employers need to start thinking hard about what constitutes the day-to-day working activities of their employees in order to protect themselves from disability discrimination claims. The law is unclear and potentially wide reaching as best demonstrated by the EAT’s recent decision in Banaszczyk v Booker.
The claimant, a picker in a distribution centre suffered from long term back pain following a car accident. His principle job role was to lift and move cases weighing up to 25kg for loading onto pallet trucks. He did this part manually and part by the use of a pallet truck. Employees were set a target of moving 210 cases per hour (the “Pick Rate”). He couldn’t achieve the Pick Rate, was dismissed and brought a claim for disability discrimination.
In order to prove a disability under the Equality Act 2010, the employee needed to prove that he had (i) a physical impairment that (ii) substantially affected (iii) the carrying out of normal day-to-day activities. Point (i) was undisputed.
The million dollar question
Could manually lifting and moving cases of up to 25kg be considered a day-to-day working activity for this employee?
The million dollar answer
Yes! The EAT held that the scope of normal day-to-day activities extended to warehouse work (and work generally). It followed that the Claimant was a disabled person and his dismissal for failing to meet the picking target amounted to disability discrimination.
What this case makes clear is precisely how unclear the law is concerning day-to-day working activities. Employers will need to protect themselves. Here are some useful survival tips.
- Don’t assume – If you have not been expressly told that an employee has a disability, you will not automatically have a defence to a claim of disability discrimination. An employer must do all it reasonably can be expected to do to find out if a worker has a disability.
- Be proactive – Employers have a positive obligation to make reasonable adjustments for disabled employees. Do not wait for an employee to raise a grievance but instead begin acting on concerns you have.
- Do not treat everyone equally – Setting universal standards e.g. a “Pick Rate” without knowing/accounting for an employee’s individual circumstances is a dangerous game.