The decision of Banaszczyk v Booker Limited, a decision of the Employment Appeal Tribunal (EAT) earlier this month, is the latest in a line of cases looking at ‘normal day-to-day activities’ for the purpose of determining if someone is “disabled” under the Equality Act. In this case, the EAT decided that a warehouse worker who had difficulty lifting up to 25kg was disabled for the purposes of the Act.
Mr Banaszczyk was employed as a ‘picker’ in a distribution centre for Booker and was employed to lift and move cases by hand for loading onto pallet trucks. He had a car accident and developed a long-term back condition. Mr Banaszczyk was able to do certain activities (such as carrying a bag of shopping) but his back condition limited his ability to lift items of up to 25kg at work. Booker set a “pick rate” of 210 items per hour. Booker’s minimum acceptable standard was for pickers to achieve at least 85% of the pick rate. Mr Banaszczyk’s pick rate was 85% for half of the time but for the rest of the time he could only achieve 70-80%. Mr Banaszczyk was dismissed on grounds of capability.
The Employment Tribunal found that, having accepted medical evidence about Mr Banaszczyk’s back condition, this condition did not have a substantial adverse effect on his ability to carry out “normal day to day activities” as its impact was limited to manual lifting of items up to 25kg at work. The Employment Judge said that this was not a normal day-to-day activity for the purposes of the Equality Act and Mr Banaszczyk lost his claim.
It was accepted that the back condition was long-term. It was plain that this impairment had an adverse effect on his ability to do his work. The question was whether the activities affected (lifting and moving) were ‘normal day-to-day activities’. The EAT disagreed with the Employment Tribunal and said that “…no-one with any knowledge of modern UK 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 EAT said that employers should not look at the ‘target’ (in this case the pick rate) as the activity, but rather to look at the activity itself which in this case was the lifting and moving of cases. It was clear that Mr Banaszczyk’s ability to do the lifting and carrying at work was impaired because of his back condition.
The decision is surprising in some aspects as there are likely to be a number of people who would not normally be regarded as disabled within the meaning of the Equality Act, but who would have difficulty lifting items weighing 25kg. In addition, the 2011 Guidance on matters to be taken into account in determining questions relating to the definition of disability says that “an inability to move heavy objects without assistance or mechanical aid such as moving a large suitcase or a heavy piece of furniture without a trolley” would not be a day to day activity. This case may be distinguished on the grounds that Mr Banaszczyk was hindered from effectively participating in the workplace and which formed a fundamental part of Mr Banaszczyk’s role.
There may (of course) be a further appeal. In the meantime employers should bear this decision in mind if an employee is significantly slower than others (and significantly slower that they would be but for their impairment) when carrying out an activity.