Aderemi v London and South Eastern Railway Ltd gives some useful pointers about what sort of disability will be a protected characteristic under the Equality Act 2010.
– While an inability to carry out all your work duties does not equate to an inability to carry out day to day activities, it should not be assumed from this that a work activity is not a day to day activity;
– Tribunals should concentrate on what the employee cannot do, not what he can do, when looking at whether there is a substantial impact on day to day activities;
– When looking at what is substantial or not, it is wrong to think that there is a sliding scale with ”trivial” at one end and “substantial“ at the other – if an effect is not trivial, it is substantial
In this particular case, Mr Aderemi was a station assistant who developed a bad back and was unable to stand for long periods, bend, or lift. This gave him problems carrying out his main duties including checking tickets. His employer dismissed him on the ground of lack of capability. An employment tribunal found that he was not disabled, so his dismissal was not unlawful discrimination, nor was it unfair. In the Employment Appeal Tribunal Mr Justice Langstaff (President) took the view that the tribunal had been unduly restrictive in its approach to what amounted to a day to day activity. As he pointed out:
If the problem is put simply, as being on one’s feet in a job for lengthy periods of time, then it is not difficult to think of very many jobs which would fit that description.
In other words, the ability to stand for longer than half an hour at a time is so commonplace a part of people’s working lives that is falls within the scope of “day to day activity”.
The EAT ordered that both the discrimination finding and the finding that the dismissal was fair were to be reconsidered, pointing out that the decision as to disability could have a knock on effect on the fairness of the dismissal, especially if the disability was caused by the employee’s work.
The case highlights the potentially awkward overlap between potentially fair dismissal on the ground of incapacity and disability discrimination. The letter notifying dismissal included a typical explanation of the reason from an incapacity perspective: