Disability Discrimination – What Does ‘Normal Day To Day Activities’ Actually Mean?
Dear
Capability and disability can be tricky waters for employers to navigate, despite often having the best intentions. When considering whether or not a worker is disabled for the purposes of the Equality Act 2010 and identifying reasonable adjustments, the employer must consider the impact of any physical or mental impairment on the worker’s “ability to carry out normal day-to-day activities”. But what are ‘day to day’ activities, and how can employers ensure they aren’t unintentionally in breach of the Equality Act?
What Are ‘Day To Day Activities?
The phrase ‘day-to-day activities has a very wide meaning, especially if an employee is claiming against their employer. Under these rules, both work and non-work activities can be classified as ‘normal day-to-day activities. To break that down, ‘normal’ means normal for people generally, rather than for that particular individual. And in employment claims specifically, a work activity does not have to be done on a daily basis. Case law on this has said that a work activity is seen as ‘normal’ if it’s found in a range of different work situations – so something like a phone call. This means it will include at least most speech situations. The law is constantly changing on this fact though, and in fact the EU are still deciding if ‘not normal’ specialist activities should be included in this – like silversmithing or playing piano to a concert standard. So watch this space for that one.
For the most part though, a day-to-day activity is something you would normally expect an employee to be able to do during the course of their work, no matter what industry they are in.
Chief Constable of Norfolk V Coffey
The idea of ‘normal day-to-day activities’ was challenged recently in the case of Lisa Coffey – a police officer in Wiltshire who was denied a transfer to Norfolk on the basis of hearing loss. Lisa had suffered a degree of hearing loss that had never caused her any problems in doing her job (and her day-to-day activities) in the Wiltshire police, which meant it was not classified as a disability under the Equality Act 2010. However, when she applied for a transfer, it was denied. This is because during her medical test, the adviser stated that her hearing ‘fell just outside the standards for recruitment, strictly speaking’. Lisa then brought a disability discrimination claim, stating that she had been discriminated against because of a perceived disability. While the constabulary argued that there was a perceived future risk, this claim succeeded before a tribunal, and was upheld by the EAT as well.
All of which goes to show that it is all too easy to discriminate, even when we don’t mean to.
How Can You Stay On the Right Side?
When handling employment law issues, it’s all too easy to make a simple misstep and land you and your business in a lot of trouble. Of course, handling new changes to employment law can be tricky, especially if you’re running a small HR department. If you’re having issues with staff, policies or procedures, particularly around keeping up with employment legislation, or just struggling to understand what you need to do to be compliant, it doesn’t hurt to get a little help and advice from the employment law experts. At Herefords, we offer hands-on, practical advice and guidance around all elements of employment law. Our service is all about guiding you through the minefield, helping you to understand the law and how it applies to your business, including any new changes that come in. And thanks to our new Employment Law Retainer, you can be confident that your key HR decisions and advice are compliant and appropriate. You can find out more about our employment law retainer by clicking here.
Or for more information on handling issues in the workplace, you can get in touch with us and book your free consultation.
Best,
Zahir Mohammed
Employment Solicitor
0203 669 2216
