Warehouse worker with difficulty lifting up to 25kg is disabled says EAT

Disability is defined as a physical or mental impairment, which has a substantial and long-term adverse effect on someone’s ‘ability to carry out normal day-to-day activities’ (Section 6(1), Equality Act 2010).

However, a common misconception is that, when deciding what constitutes ‘normal day-to-day activities’, activities which a person only carries out at work do not count. A judgment of the Employment Appeal Tribunal (EAT) this week underlines why this understanding is incorrect and why this is an issue about which employers need to be aware.

The EAT ruled that warehouse work including manually lifting and moving items of up to 25 kg is a ‘normal day-to-day activity’ for the purposes of disability discrimination (Banaszczyk v Booker Ltd [2016] UKEAT/0132/15/RN

Mr Banaszczyk was employed to lift and move goods onto pallet trucks in a warehouse. He had a long-term back condition. He was able to do ordinary domestic day-to-day activities (such as shopping) but his back condition limited his ability to lift items of up to 25kg at work.

The EAT found that ‘no-one with any knowledge of modern UK life working life could doubt that large numbers of people are employed to work lifting and moving cases of up to 25kg across a range of occupations, including in particular occupations concerned with warehousing and distribution.’

The employer had argued that the impact of the worker’s back problems was actually on his ability to meet the ‘pick rate’ of 210 items per hour, and that this was not a ‘normal day-to-day activity’.

The Judge in the EAT rejected the employer’s argument as follows:  ‘It confuses the activity itself with a particular requirement of an employer as to the speed with which the activity is performed.  It is to my mind essential, if disability law is to be applied correctly, to define the relevant activity of working or professional life broadly: care should be taken before including in the definition the very feature which constitutes a barrier to the disabled individual’s participation in that activity.

In this case the activity was the lifting and movement of goods manually; the employer’s ‘pick rate’ was not the activity, but a particular requirement of the employer as to the manner and speed of performance.’

The explanation for this decision is to be found in EU law, which requires that the definition of  ‘disability’ in the EqA 2010 must be interpreted in accordance with the relevant EU Directive (Equal Treatment Framework Directive (2000/78/EC)(the Framework Directive) in the employment sphere

The European Court of Justice (ECJ) has stated that disability in the context of the Framework Directive means a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life on an equal basis with other workers.

Some examples of activities which have previously been found to be ‘normal day-today activities’ include:

• Career-related examinations and assessments: in relation to dyslexic workers
• Night work: In relation to workers who experienced medical problems only when working night shifts
• Standing for long periods: in relation to workers who experience back pain only when standing for long periods

Employers could be forgiven for thinking that the decision in Banaszczyk v Booker Ltd is stretching the definition of ‘normal day-today activities’ too far because there are large numbers of people who are not in any sense disabled and who would have difficulty lifting items weighing 25kg.

In Mr Banaszczyk’s case, the EAT found that his ability to carry out the activity in question, i.e. lifting and carrying at work, was impaired because of his back condition.

That is not the end of the story it seems as there would appear to be an issue as to whether, given the ruling as to disability, Mr Banaszcyk’s dismissal for incapacity was justified.

It is perhaps a rather surprising decision and one that employers should take careful note of. Interestingly, the Guidance on the definition of disability suggests that ‘Inability to move heavy objects without assistance or a mechanical aid, such as moving a large suitcase or heavy piece of furniture without a trolley’ would not be a day to day activity. Of course, much depends on what is meant by heavy in that regard.  We will have to see whether the  Guidance is amended in light of this case, pending any further appeal.