22 November 2018
A recently court case has demonstrated that disability is not always easy to define.
Luton Airport suffered some embarrassing publicity recently when a paraplegic athlete, arriving on an incoming flight, found that his bespoke self-propelled wheelchair had been left behind and, rejecting the loan of a normal wheelchair, set off for his taxi by dragging himself across the floor. The airport has now acquired some self-drive wheelchairs for those disabled people who are keen to be independent.
Employers who have an office, shop or factory, need to check occasionally to ensure that they provide the right access and facilities for those with a disability.
Is it a disability?
Not all disabilities, though, are as obvious as the one described above. Under the Equality Act 2010 to bring a disability discrimination claim, the claimant must have a disability as defined as follows:
- he or she has a physical or mental impairment; and
- the impairment has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities.
These definitions are being refined by case law. In the case of Banaszczyk v Booker Ltd the appellant had suffered a back injury which impaired his ability to carry out his job. The job, as a picker in a distribution centre, involved him lifting packages of up to 25 kilos, and working at no less than a specified ‘picking rate’. His employers dismissed him due to incapacity. The Employment Tribunal initially found in the employers’ favour because Mr. Banaszczyk was able to lead a normal life and carry out normal day-to-day activities outside the workplace. This meant that he could not be classified as having a disability and consequently his claim for unfair dismissal on the grounds of disability discrimination must fail.
At the Employment Appeal Tribunal, however, it was held that lifting cases of up to 25 kilos was an activity common to many workplaces and was therefore a ‘normal day-to-day activity’. The appellant was therefore disabled and had suffered discrimination.
Not all disabilities are obvious
The definition of disability, as opposed to incapacity, or merely long-term sickness, can be problematic for employers. Note for example that the Act includes mental impairment as well as physical. Mental health issues at work appear to be getting more common, or at least more frequently reported. According to a study by the Confederation of British Industry, 40% of employers reported that more than 5% of their workforce had a mental health problem. This was four times more than a similar study carried out in 2013.
Employers have statutory responsibilities enshrined in the Equality Act. If an employee has a health problem that could be defined as a disability, the employer must make ‘reasonable adjustments’.
A reasonable adjustment could be a ramp for a wheelchair user, or a specially adapted computer for someone with impaired vision. Those with a mental issue might be allowed to work more flexible hours or to work from home. The word ‘reasonable’ is important. It means that these are changes that an organisation can make to ensure that an employee is able to do their job effectively, without causing damage or interruption to its business. It is also worth remembering that although at the moment you might have no employees with disabilities, the status of any of your employees could change through illness or accident. Also you might have a job applicant who is confined to a wheelchair. In such circumstances, depending of course on the type of work and the practicalities of the layout of the workplace, you might be required to make reasonable adjustments.
Finally, don’t fall foul of the definitions. An individual’s ability to carry out “normal day-to-day activities” may not be decided by what he or she is capable of doing outside work. If the work activities are common across a number of different industries they might be found to be ‘day-to-day activities’. Your employee might therefore have a disability after all.
If you have any problems with this issue give me a call. If appropriate I can refer you to a specialist in employment law.