Disability discrimination may include being unable to lift and move goods

In Banaszczyk v Booker, the Claimant was a picker in a distribution centre which involved manually moving goods weighing up to 25kg. He was injured in a car accident and began to suffer from back pain. An occupational health report concluded that, as a result, he was unable to comply with the required 'pick rate' of 210 cases per hour. The minimum requirement was for 85% of the pick rate. The Respondent noted that the Claimant could manage that for half of his time but only 70-80% for the remainder. The Claimant was dismissed for capability in July 2013.

The Claimant brought a claim in the Employment Tribunal for disability discrimination.

Background law

The Equality Act 2010 provides protection against discrimination which relates to certain characteristics.

Disability is one of the protected characteristics. It is any physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities.

The adverse effect must be a substantial effect which is not minor or trivial. Normal day-to-day activities are anything which is not abnormal or unusual.

Judgment of the Employment Tribunal

At a preliminary hearing, an Employment Judge held that the claimant 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 carrying out normal day-to-day activities.

The claimant appealed to the Employment Appeals Tribunal.

Judgment of the Employment Appeals Tribunal

The EAT allowed the claimant's appeal, holding that:

• there was no dispute that the Claimant had a physical impairment whose effect was long-term. The question was whether it had a substantial adverse effect on his ability to carry out normal day-to-day activities
• it was plain that the Claimant’s physical impairment had an adverse effect on his ability to do his work. The question was whether his activities at work were normal day-to-day activities
• the facts about his normal day-to-day activities at work were undisputed. He was a warehouse operative lifting and moving goods in part manually and in part by the use of a pallet truck; and the goods might weigh up to 25kg
• in the context of work, this is a normal day-to-day activity: no-one with any knowledge of modern UK life working life could doubt that large numbers of people are employed to work lifting and moving cases of up to 25kg across a range of occupations, including in particular occupations concerned with warehousing and distribution
• the fact that the Claimant was required to comply with a 'pick rate' did not stop it from being a normal day-to-day activity. The activity was the lifting and movement of goods manually; the employer’s 'pick rate' was not the activity, but a particular requirement of the employer as to the manner and speed of performance of that activity
• if disability law is to be applied correctly, it is essential to define the relevant activity of working or professional life broadly: care should be taken before including in the definition the very feature which constitutes a barrier to the disabled individual’s participation in that activity (in this case the 'pick rate')
• it was then necessary to ask whether the effect of the claimant’s physical impairment was substantial
• the effect of the claimant’s long-term physical impairment was that he was significantly slower than others—and significantly slower than the Claimant would have been but for the impairment when carrying out the activity of lifting and moving cases

Impact of this judgment

Employers could be forgiven for thinking that this case is stretching the definition of normal day to day activities too far, because there are a large number of people who are not in any sense disabled and who would have difficulty lifting heavy items.

This judgment provides a helpful example of the concept of a normal day-to-day activity in the context of work, i.e. lifting and carrying at work due to a back condition. It follows the European case law in that respect which confirms that the concept of disability covers limitations which affect work activities.

It is a rather surprising decision and one which employers should take a careful note. Therefore, employers should be careful to define relevant activities broadly, and care should be taken not to include the very feature which constitutes a barrier to the disabled individual’s participation in that activity. Accordingly, the lifting and movement of goods manually is a normal day-to-day activity but an employer’s 'pick rate' is not the activity. It is simply a particular requirement of the employer as to the manner and speed of performance of that activity.

For more information about how discrimination in the workplace, contact us on 01225 632240 or at info@renneyandco.com.

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