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When a disability is not a disability, or is it?

A recent case has highlighted how difficult the question of establishing a ‘disability’ can be – even an Employment Tribunal judge seems to have been confused, leading the Employment Appeal Tribunal (EAT) to overturn his decision!

been confused, leading the Employment Appeal Tribunal (EAT) to overturn his decision!

So what is a ‘disability’? The Equality Act 2010 (EA) states that a person has a disability if they a) have a physical or mental impairment, and b) the impairment has a substantial and long-term adverse effect on their ability to carry out “normal day-to-day activities.”

In the case of Banaszczyk v Booker Ltd the Employment Tribunal originally found that Mr B was not disabled even though it accepted that Mr B’s condition constituted a “long term physical impairment.” However, because his condition did not have a “substantial effect” on his ability to carry out “normal day to day activities” he was not disabled within the meaning of the Equality Act said the first tribunal. The EAT disagreed.

The case details are as follows. Mr B was employed as a picker in one of Booker’s distribution centres. He was targeted on a “pick rate” of 210 cases per hour, with the minimum acceptable standard being 85% of that.

After a car accident in Feb 2009 which injured Mr B’s spine he had several periods of absence from work due to back pain between 2009 and 2012. Returning from a 4 week absence in 2012 he requested light duties but in reality continued with normal duties. After a further absence in Sept 2012 Mr B‘s GP requested that he be excluded from heavy lifting. Booker referred him to an Occupational Therapist who reported that he was unable to meet his picking target; that this was not likely to improve in the foreseeable future and that he might have further setbacks which would result in further absences. The therapist concluded that if Booker could not accept his impaired performance, they may eventually have to consider whether they could continue his employment.

Booker dismissed Mr B in July 2013 on the grounds of incapability. He brought claims of Unfair Dismissal and Disability Discrimination to the ET.

At a preliminary hearing to decide whether Mr B had a ‘disability’ within the meaning of the Equality Act the judge decided that he was not disabled – although his condition was a “long term physical impairment” it did not have a “substantial effect” on his ability to carry out “normal day to day activities” and therefore he did not meet both requirements of the EA definition.

Mr B appealed to the EAT who overturned the ET decision and declared that Mr B did have a disability. The EAT criticised the Employment Judge for not referring to Government guidance relating to the definition of disability and in particular to the meaning of “normal day to day activities” and “substantial adverse effect.”

The EAT said that Mr B’s condition should be regarded as a disability because:

  • The (undisputed) Occupational Therapist report said he had a condition; and
  • It said the condition was long term and likely to reoccur; and
  • It regarded Mr B’s duties of moving up to 25KG weights as a ‘normal day to day activity’; and
  • Because of Mr B’s condition he was substantially slower at moving items and so there was (contrary to the first tribunal’s view) a ‘substantial effect’ on his ability to carry out what (for his role) were ‘normal day to day activities’ (which were not in themselves unusual or specialist, albeit 25KG is a fairly heavy object.)

Once the ‘disability’ had been proved to exist, the automatic requirement to consider reasonable adjustments was triggered. In this case a reasonable adjustment may have included (and this is far from an exhaustive list):

  • Reducing the target pick rate to reflect his impairment; and/or
  • Considering whether heavier items might be excluded from his role; and/or
  • Providing equipment or additional safety clothing/braces to help him; and/or
  • Adjustments to premises to help him pick more easily; and or
  • Considering whether a different role might be available.

As ever the larger the employer the more extensive (and expensive) the range of adjustments that should be considered. The government provide a body called ‘Access to Work’ that can provide substantial grants to smaller employers to fund adjustments to premises and for the provision of specialist equipment to enable the employment of people with disabilities.

This case serves as a useful reminder that a ‘disability’ is not always a straightforward thing to diagnose and great care must be taken before choosing to dismiss an employee who may have a ‘disability’ under the Act.

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