In the case of Banaszczyk v Booker, Mr Banaszczyk was employed as a picker in a distribution centre. His role involved selecting and loading cases weighing up to 25kg by hand so that they could be loaded onto pallet trucks.
Following a car accident he developed a chronic back condition which meant that he was no longer able to meet his employer's 'pick rate' - a target picking speed of 210 cases per hour.
A report from occupational health concluded that there was no realistic prospect that he would ever be able to meet the requisite pick rate in future due to his condition. He was dismissed for incapability in July 2013 and brought proceedings in the tribunal for unfair dismissal and disability discrimination.
In the Employment Tribunal (ET), the judge accepted the evidence from occupational health as to the effect of Mr Banaszczyk's condition on his work. However, it was held that the impact of his medical condition was limited to the manual lifting of cases weighing up to 25kg at work which was not a 'normal day to day' activity for the purposes of the Equality Act 2010. For this reason the tribunal concluded that Mr Banaszczyk was not a disabled person.
In upholding Mr Banaszczyk's appeal, the EAT held that the scope of 'normal day to day activities' extended to the lifting and moving of cases up to 25kg.
In doing so, they confirmed that the extent to which an impairment may hinder the full and effective participation of a person in professional life should be taken into account. They particularly noted that a large number of people in the UK are employed to work lifting and moving cases of up to 25kg across a range of occupations.
In view of this and the medical evidence accepted by the ET, the only conclusion was that Mr Banaszczyk was a disabled person under the Equality Act 2010.
The EAT expressly rejected Booker's argument that the 'pick rate' of Mr Banaszczyk's work took his role outside the scope of being a 'normal day to day activity'. The EAT cautioned against confusing the activity in question (in this case, the lifting and moving of cases) with an employer's specific requirement as to performance of that activity (i.e. the pick rate) when analysing what constitutes a 'normal day to day activity'.
This case is a useful reminder of what may amount to a 'normal day to day activity' when considering if an employee will fall within the definition of a disabled person under the Equality Act 2010.
In particular, it shows that employers should focus on the nature of the activity, rather than the employer's specific requirements for its performance. Early and clear medical advice - which an employer can then critically analyse - will be helpful in making assessments in cases such as this.