Important to identify what activities individual cannot do when establishing disability
In the recent case of Aderemi v London and South Eastern Railway Limited, the EAT held that, the Employment Tribunal was wrong to focus on what activities the employee could do rather than those he could not do when assessing whether or not the employee was disabled.
Mr Aderemi was a train station attendant who, as part of his role, was required to stand for long periods of time. He developed a lower back problem which, amongst other symptoms, caused him pain when standing for periods of longer than 30 minutes. After a number of periods of sickness absence Mr Aderemi was dismissed on the grounds of capability. His internal appeal was unsuccessful and he then brought proceedings for disability discrimination and unfair dismissal.
The Employment Tribunal firstly had to decide whether Mr Aderemi was disabled for the purposes of the Equality Act 2010 and a person has a disability if:
- He has a physical or mental impairment, and;
- The impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
The Employment Tribunal found that Mr Aderemi was not disabled for the purposes of the Act, with a particular focus on the various day-to-day activities which he could do notwithstanding his impairment. Mr Aderemi’s evidence was that he could carry out light physical activities such as walking, standing or sitting provided it was not for long periods. He could also lift light items and put his shoes on. The Employment Tribunal concluded that, Mr Aderemi’s condition did not have a substantial and adverse effect on his day-to-day activities.
Employment Appeal Tribunal
Mr Aderemi appealed to the EAT on the basis that the Employment Tribunal had erred in law by failing to focus on the activities that he could not do as a result of his condition, and that further it had failed as part of its assessment to consider the effect his impairment had on these activities compared to if he had not had the impairment.
The EAT upheld the appeal agreeing that, the Employment Tribunal had given too little consideration to what Mr Aderemi could not do, stating that the Act:
"Requires the focus of the Tribunal to be not upon that which a Claimant can do but that upon which he cannot do. It is what he cannot do that requires to be assessed, to see whether it is truly trivial and insubstantial or whether it is not"
In respect of the question of whether any impairment was "substantial" for the purposes of the Act, the EAT referred to the case of Paterson v Metropolitan Police Commissioner  in which it was held that the proper approach to that question involved considering how the claimant carries out the activity with their impairment, compared to how they would if they did not have the impairment. The question is then whether this difference is "more than the kind of difference one might expect taking a cross-section of the population". If it is, then the effects are substantial.
The EAT referred the case back to the Employment Tribunal for it to consider whether or not Mr Aderemi’s condition had a substantial adverse effect on his normal day-to day activities and if so, whether that effect was long-term.
The decision is interesting for employers because the EAT held that, standing for long periods of time can be a normal day-to day activity. As there are very many people for whom standing for long periods is part of their job, (the retail, health and catering sectors for instance), employers will need to ensure they carefully consider not only what activities their employees can do but what they cannot do when assessing whether or not their employee has a disability.