Employers
need to start thinking hard about what constitutes the day-to-day working
activities of their employees in order to protect themselves from disability
discrimination claims. The law is unclear and potentially wide reaching as best
demonstrated by the EAT’s recent decision in Banaszczyk v Booker.
The Facts
The
claimant, a picker in a distribution centre suffered from long term back pain
following a car accident. His principle job role was to lift and move cases
weighing up to 25kg for loading onto pallet trucks. He did this part manually
and part by the use of a pallet truck. Employees were set a target of moving
210 cases per hour (the “Pick Rate”). He couldn’t achieve the Pick Rate, was
dismissed and brought a claim for disability discrimination.
The Law
In order to
prove a disability under the Equality Act 2010, the employee needed to prove
that he had (i) a physical impairment that (ii) substantially affected (iii)
the carrying out of normal day-to-day activities. Point (i) was undisputed.
The million dollar question
Could
manually lifting and moving cases of up to 25kg be considered a day-to-day
working activity for this employee?
The million dollar answer
Yes! The EAT
held that the scope of normal day-to-day activities extended to warehouse work
(and work generally). It followed that the
Claimant was a disabled person and his dismissal for failing to meet the
picking target amounted to disability discrimination.
Conclusion
What this
case makes clear is precisely how unclear the law is concerning day-to-day
working activities. Employers will need to protect themselves. Here are some
useful survival tips.
·
Don’t assume - If you have not been expressly told
that an employee has a disability, you will not automatically have a defence to
a claim of disability discrimination. An employer must do all it reasonably can
be expected to do to find out if a worker has a disability.
·
Be proactive – Employers have a positive
obligation to make reasonable adjustments for disabled employees. Do not wait
for an employee to raise a grievance but instead begin acting on concerns you
have.
·
Do not treat everyone equally – Setting
universal standards e.g. a “Pick Rate” without knowing/accounting for an
employee’s individual circumstances is a dangerous game.
Rhona Darbyshire
