Aderemi v London and South East Railways UKEAT/0316/12/KN

Subjects: Definition of Disability – Normal Day to Day Activity – Activities at work – Definition of Substantial

C brought claims of disability discrimination after he was dismissed for incapacity. The ET held that he was not disabled because his condition did not have a substantial, long term adverse effect on his normal day-to-day activities. C appealed.

Facts

C was a station attendant who was required to be on his feet for most of the day. He developed a back condition which prevented him from standing for long periods and he was dismissed for lack of capability. C contended that the dismissal was an act of discrimination. The ET accepted that C had a physical impairment that caused him severe pain on occasions but held that the condition did not have a substantial, adverse effect on C's ability to carry out day-to-day activities.

Held

Langstaff P conducts a helpful review of the authorities. He states that the ET is not required to consider the adverse effect upon C's carrying out of day-to-day activities but upon his ability to carry out day to day activities. The mere fact that a person is able to perform an activity is not relevant - he may for instance be able to perform it, but only with great pain. Furthermore the ET should focus on what C cannot do rather than upon what he can do. Lanstaff P provides some helpful guidance on the meaning of ‘’substantial.’’ He states at paragraph 14 that if the effect of the disability is not trivial or insubstantial then it must be treated as substantial and there is very little room for a dividing line between these two positions.

What is the correct approach to considering when work related activities qualify as day-to-day activities? Referring to both Patterson v Commissioner of Police of the Metropolis [2007] IRLR 763 and Ekpe v Metropolitan Police Commissioner [2001] IRLR 605 Langstaff P recognized that some impairments are almost bound to affect a myriad of individual activities, not all of which could satisfactorily be listed by even the most able and eloquent of claimants. If there is some impairment that affected a concert pianist only in his ability to manipulate the keys of his piano, it would affect his manual dexterity but would not affect his normal day-to-day activities within the meaning of the Act. But there is no rule of law that says an activity cannot qualify as a day-to-day activity merely because it is performed at work. Interestingly (and correctly in the author's view) Langstaff P appears to be skeptical of the decision in Bourne v ECT Bus UKEAT/0288/08 in which the EAT upheld a conclusion that a person who was unable to sit down all day to drive a bus was not disabled, because driving a bus was not a normal day- to-day activity. As Langstaff correctly points out if the normal day-to-day activity in that case had been described as sitting rather than driving a bus the ET may well have come to a different conclusion. Langstaff P held that the ET in this case had erred in its approach to disability and remitted the case for a re-hearing.

Comment

The approach Langstaff P takes to the question of what is a day-to-day activity emphasizes the important role that legal advisers often play in disability cases. The question of what is a day-to-day activity is a question of definition. If, as in Bourne, the description of the day-to-day activity is inaccurate then an ET may come to a different conclusion to the one it might otherwise have reached.

A transcript of this case can be accessed via the following link:

http://www.bailii.org/uk/cases/UKEAT/2012/0316_12_0612.html