Disability

by Kate Russell

Normal day-to-day activities

Meaning of normal

‘Normal’ does not include activities which are normal only for a particular person, or a small group of people. In deciding whether an activity is a normal day-to-day activity, you should consider how far it is normal for a large number of people, and carried out by people on a daily or frequent and fairly regular basis.

A normal day-to-day activity is not necessarily one that is carried out by a majority of people. For example, it is possible that some activities might be carried out only, or more predominantly, by people of a particular gender, such as applying make-up or using hair curling equipment, and cannot therefore be said to be normal for most people. They would nevertheless be considered to be normal day-to-day activities.

Normal doesn’t include specialised activities, such as playing a musical instrument to a high standard of achievement, taking part in a particular game or hobby where very specific skills or levels of ability are required or playing a particular sport to a high level of ability, such as would be required for a professional footballer or athlete.

Despite this, many types of work or specialised hobby, sport or pastime may involve normal day-to-day activities – sitting down, standing up, walking, running, verbal interaction, writing, making a cup of tea, using an everyday object such as a keyboard, and lifting, moving or carrying everyday objects such as chairs.

Normal day-to-day activities extends to workplace duties.

Example

Mr Banaszczyk was employed as a picker in a warehouse. His role required him to lift and load cases weighing up to 25kg. Following a car accident, Mr Banaszczyk developed a back condition restricting his ability to meet a performance target which related to speed. He was subsequently dismissed on capability grounds.

He claimed unfair dismissal and disability discrimination. A Preliminary Hearing took place to determine whether he was disabled.

While it was accepted by the employer that Mr Banaszczyk’s condition impacted upon his ability to perform workplace activities, the employer argued that these duties were not “normal day-to-day activities” – they were specialised and a particular speed was required, meaning that it was not “normal”. The EAT disagreed on the basis that, in the context of work, such manual labour was commonplace.

In any event, the EAT considered that European case authority allows such specialisms to fall within the definition. As Mr Banaszczyk was significantly slower at performing these “normal day-to-day activities” than he would have been without his back condition, his condition amounted to a disability.

The definition of disability is wide. Where there is doubt, you should assume that the workplace duties in question will fall within the definition of “normal day-to-day activities” and if the employee’s condition has a substantial and long term adverse effect on their ability to carry out those work activities, they will be disabled in terms of the EqA.

Normal also applies even where some activities are not in fact a daily requirement.

Example

After many years’ service with the police, during which he rose up the ranks to chief inspector, P discovered that he was dyslexic. He had previously performed his role well, had coped with complex paperwork, taken various exams and carried out many managerial functions without any awareness of his condition.

P wished to be promoted to superintendent, which involved completing a promotion assessment. He argued that he was disabled and at a substantial disadvantage compared to his work colleagues with respect to carrying out the promotion examination and assessments. He asked for but was refused extra time to complete the promotion assessments and brought proceedings claiming that the police had failed to make reasonable adjustments in relation to his promotion application and that he had been discriminated against for a reason related to his disability.

P argued that high pressure exams or assessments were a usual, if irregular, everyday activity, and that he suffered from a deficit in reading and comprehension skills, which were a day-to-day activity. In support of his argument, he referred to the case of Chacon Navas v Eurest Colectividades SA, in which the European Court of Justice defined the concept of disability and envisaged protection extending to ‘situations in which participation in professional life is hindered over a long period of time’.

The EAT agreed with him. Saying that where an individual suffers a substantial disadvantage because of the effects of a disability in promotion or assessment procedures, those effects must involve a substantial effect on the ability to carry out normal day-to-day activities.

It is for the employee to prove that the disability in question has a long term and substantial adverse impact on his ability to carry out normal day to day activities.

Example

Mr Mutombo-Mpania was engaged by Angard Staffing Solutions to work for Royal Mail on assignments where he was required. He had not declared his condition (Essential Hypertension) on either the application from or on a subsequent health questionnaire, and worked for several years with no problem, often on late shifts which finished at 10 pm. Medical evidence related to the medication he was taking and the symptoms he suffered but no mention was made of how this impacted on his ability to carry out normal day to day activities, save that, in the context of the events that led to the claim of disability discrimination, he advised Angard in November 2016 that “...my health condition does not allow me to do regular night shifts”.

In November 2016, Royal Mail advised Angard of a change in their requirements which meant more night shift staff were required. Mr Mutombo-Mpania was offered, and accepted, a booking to work on the night shift (10 p.m. – 6.00 a.m.) between 21 November 2016 and 13 January 2017. On 16th November he emailed Angard saying that his ‘health condition’ meant that he could not work regular night shifts. He asked that his name be taken off the night shift and moved back to the late shift (finishing at 10.00 p.m.), and further queried his shifts. He was absent on 4 occasions between 21st November and 15th December, absences which Angard did not know about, and Royal Mail then advised that they no longer wished him to continue working on their assignments.

Mr Mutombo-Mpania did not provide any evidence of an impact on his ability to carry out day to day activities.

The employment tribunal found that Mr Mutombo-Mpania had provided no evidence that the condition he suffered from, Essential Hypertension, had a substantial effect on his ability to carry out day to day activities. It was accepted that he had a long term condition. Mr Mutombo-Mpania argued that night shifts were normal day to day activities, and that he had explained that he did not wish to work a regular night shift, but made no real link between the condition and why it meant that he could not work night shifts.

The EAT agreed that Mr Mutombo-Mpania had not fulfilled the evidential burden of proving that the Essential Hypertension impacted on normal day to day activities. The EAT referred to the case of Chief Constable of Dumfries and Galloway Constabulary v Adams[2009], a case in which it had previously been determined that a night shift amounted to a normal day to day activity.

In confirming that, the court elaborated on the fact that the claimant in that case, Mr Adams, suffered from particular mobility problems between the hours of 2.00 a.m. and 4.00 a.m., and that when on night shift, he was expected to be carrying out ‘normal’ activities such as dressing, walking upstairs, driving and undressing, all of which were impacted by his condition (MS). In contrast, in this case, Mr Mutombo-Mpania did not bring any evidence to show which particular activities were difficult for him on the night shift.