A Reminder Of The Definition Of Disability

The case of Banaszczyk v Booker Ltd UKEAT/0132/15/RN provides firm guidance regarding the definition of disability.   

The Claimant, Mr Banaszczyk, had been employed by Booker Ltd (wholesale warehouses) as a picker in their distribution centre since February 2008. “Picking” involved selecting cases of goods of up to 25kg each, then lifting and moving each case “by hand” onto a pallet truck. Employees worked to a “pick rate” (as agreed by the relevant trade union) of 210 cases per hour and were expected to continually achieve at least 85% of that rate.

Following a car accident in February 2009 Mr Banaszczyk was unable to meet the pick rate and had several periods of time off work. After seeing Mr Banaszczyk on two occasions his employers occupational physician concluded that “Mr Banaszczyk had a long-term history of back problems which impaired his performance” with “no realistic prospect that he would increase his picking speed to meet his target requirements” and “it was more likely than not that he would have absences in the future because of his back.”

Mr Banaszczyk was dismissed in July 2014 on the grounds of incapability and brought a claim of unfair dismissal and disability discrimination before the Employment Tribunal (ET). At the ET the judge determined that Mr Banaszczyk did not have a disability because:

• Although the occupational health evidence was accepted
• The ET said that this “did not have a substantial effect on his capacity to carry out day-to-day activities”

Mr Banaszczyk appealed to the Employment Appeal Tribunal (EAT) who, in allowing the appeal, substituted the Employment Judge’s decision with a declaration that Mr Banaszczyk did have a disability. The EAT reinforced the 2 part test regarding the definition of disability in section 6 of the Equality Act 2010 Act which is:

(1) Did Mr Banaszczyk have “a physical or mental impairment whose effect was long-term”?

There had never been any dispute that Mr Banaszczyk “had a physical impairment whose effect was long-term”

(2) Did the impairment have a “substantial and long-term adverse effect” on his ability to carry out normal day-to-day activities”?

The EAT looked to the “Guidance on matters to be taken into account in determining questions relating to the definition of disability” (issued under s6(5) of the Equality Act 2010) which an ET is required to take into account. The guidance confirms that “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.”

On the facts of this case, Mr Banaszczyk’s inability to meet the “pick rate” was “potentially a barrier which interacted with the Claimant’s disability to hinder his full participation in working life.”

Practice managers should now ensure they are:

• Familiar with the 2 part test regarding the definition of disability and be able to apply it in practice

• Able to reach decisions regarding disability using the “Guidance on matters to be taken into account in determining questions relating to the definition of disability” see: https://www.gov.uk/government/publications/disability-equality-act-2010-guidance-on-matters-to-be-taken-into-account-in-determining-questions-relating-to-the-definition-of-disability

This may seem fairly straightforward at first glance, but will become less so when the many varied factors are taken into account.  It may help to replace the word ‘disability’ with ‘impairment’ when applying any test.

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