Workplace discrimination: Osborne Clarke Employment Partner Danielle Kingdon reviews two recent tribunal decisions

‘Day-to-day activities’ and discrimination: what employers need to know

This week’s papers reported on a ruling against a company (A) for disability discrimination in relation to a dyslexic employee. The employee had been wrongly accused of falsifying documents after misreading numbers she was responsible for recording. The Employment Appeal Tribunal (EAT) found that A was aware of the employee’s dyslexia, but failed to make reasonable adjustments to take account of her reading difficulties. This was a breach of its duty to make reasonable adjustments under the Equality Act 2010. In this case, dyslexia was a disability for the purposes of triggering the protections provided by the Equality Act.

In another recent ruling in Banaszczyk v Booker, the EAT found that a picker in a distribution centre was disabled for the purposes of the Equality Act as a result of a back injury that made it difficult for him to manually lift and move cases of up to 25 kg. 

In both cases, in order to trigger the protection of the Equality Act 2010 (Equality Act), the employees needed to establish they had a disability. A disability, for the purposes of the Equality Act, is a physical or mental impairment that hinders the employee’s ability to participate fully in working life. It must be a long-term impairment that has a substantial effect on the employee’s ability to carry out ‘normal day-to-day activities’. What can be classed as a ‘normal day-to-day activity’ is an important concept for employers to understand, as they must be able to assess whether employees are disabled and therefore what reasonable adjustments must be made to help them carry out their work. 

What are ‘normal day-to-day activities’ under the Equality Act? 

The Equality Act doesn’t contain any provision as to what may amount to ‘normal day-to-day activities’. In 2012 the government issued “Guidance on matters to be taken into account in determining questions relating to the definition of disability“, and tribunals are required to take account of any guidance that is relevant to the issues. This guidance states: 

“The term ‘normal day-to-day activities’ is not intended to include activities which are normal only for particular person, or a small group of people. In deciding whether an activity is a normal day-to-day activity, account should be taken of how far it is carried out by people on a daily or frequent basis. In this context, ‘normal’ should be given its ordinary, everyday meaning.” 

Applying this principle, employers must assess whether the particular activities an employee is unable to perform, due to a physical or mental impairment, are those which are carried out on a widespread basis, rather than just by a particular group of people. 

In the Banaszczyk case, the employer argued that ‘normal day-to-day activities’ does not include all duties or aspects of professional life; the concept was intended to apply to activities which are common across a range of different work situations. A ‘pick’ rate wasn’t an activity of this kind. 

The EAT found that the employer was looking at the issue from the wrong angle. 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). The activity of lifting/moving heavy goods must be widespread across a number of occupations, in particular, warehousing and distribution. Therefore the employee could show a long-term physical impairment that has a substantial impact on his ability to carry out ‘normal day-to-day activities’.

Looking at the situation in which A found itself, dyslexia would have been considered a long-term impairment. The only question would have been whether or not it was severe enough to have a substantial adverse effect on normal day-to-day activities. Dyslexia can affect people to different degrees. Extreme cases will certainly have a substantial adverse effect on ‘normal day-to-day activities’ but more mild cases may not. Employers may well feel it is safer to give an employee with dyslexia the benefit of the doubt and proceed on the basis that he or she does have a disability. 

Dyslexic employees may face challenges with a number of reading and writing tasks in the workplace, many of which would be ‘normal day-to-day activities’. Employers must carefully consider any reasonable adjustments that could be made to assist these employees in overcoming the challenges posed by their condition. In this particular case, the employee commented that changes to the font size of written policies and having a colleague to help would have assisted her. 

How do I know when to make reasonable adjustments? 

It can be a difficult task for employers to identify when employees are struggling as a result of a disability. This is particularly the case where the challenges faced are not immediately apparent. Mistakes made and targets missed can, on the face of things, look like the result of a lack of care or commitment. It is important that employers fully understand the cause of the shortcomings before imposing any disciplinary sanctions. Where disciplinary action is taken against an employee and the shortcomings are found to be a result of a disability, the employer could face an expensive disability discrimination claim for which compensation is uncapped. 

If an employee has a physical or mental condition that could be impacting on their performance, carefully assess the particular duty the employee is struggling with. Where the employee has a long-term condition that is having a substantial impact on their ability to carry out duties that are ‘normal day-to-day activities’, explore what reasonable adjustments could be made to enable the employee to deliver on their objectives.