Disabilityby Kate Russell
Normal day-to-day activities
Before the implementation of the Equality Act, for an impairment to be considered to be a disability, it would have to adversely affect a number of capacities (mobility, manual dexterity, physical co-ordination, continence, ability to lift, carry or otherwise move everyday objects, speech, hearing or eyesight, memory or ability to concentrate, learn or understand and perception of the risk of physical danger).
These categories have now been removed. Employment tribunals will have to consider whether a person’s impairment has a long term and substantial effect on his ability to carry out day-to-day activities. The guidance will mean that employees with an impairment are likely to find it easier to demonstrate that they have a disability.
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.
Day-to-day activities are usually viewed in a wider sense and don’t include activities that are just confined to the day-to-day activities of a particular job. This is because no particular form of work is normal for most people. In any individual case, the activities carried out might be highly specialised. For example, carrying out delicate work with specialised tools may be a normal working activity for a watch repairer, whereas it would not be normal for a person who is employed as semi-skilled worker.
Q had undergone open-heart surgery and was unable to lift heavy objects. He worked for B&Q one of their garden centres. On the fifth day of his employment he was asked to assist in the handling of 200 litre peat sacks. He declined because of his heart condition and was dismissed on grounds of capability. He complained that he had been less favourably treated because of his disability. The tribunal found that he had a physical impairment but that this impairment did not affect his ability to carry out normal day-to-day activities, such as lifting shopping. Q was not therefore entitled to any reasonable adjustment to enable him to keep his job.
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.
The courts are very protective of disabled people and it is noticeable that they tend to interpret legislation very broadly. For instance, in the case of a senior police officer who suffered from dyslexia, the court concluded that he was disabled and therefore disadvantaged when carrying out examinations for promotion and that promotion assessments and examinations are ‘normal day-to-day activities’.
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.