Space Oddity has had quite a revival in our house, not in tribute to David Bowie but rather in homage to the work of Tim Peake on the ISS and a school space project. (Bowie’s version loses out to the one performed by astronaut Chris Hadfield on the ISS with his moustache and floating guitar every time). It’s hard to imagine a more out of the ordinary working life, but query whether some tasks still become relatively ‘normal’ or ‘everyday’ for the astronauts within the isolated context of the Space Station?
The recent disability discrimination case of Banaszczyk v Booker brought the concept of typical and unusual work into focus and specifically whether professional or work tasks can be “normal day-to-day activities” in the context of the statutory definition of disability.
In order to be a disability, the Equality Act requires a physical or mental impairment to have a substantial and long-term adverse effect on the person’s ability to carry out “normal day-to-day activities”. In the recent case, the employee’s bad back only affected his ability to carry out manual handling of items weighing up to 25kg at work. On that basis, the Employment Tribunal had decided that it did not have the necessary adverse effect, as those work activities were not “normal day-to-day activities”.
The EAT decided the case differently. With reference to EU law and the previous EAT case of Paterson, the manual handling as part of the employee’s working life was a “normal day-to-day activity”. The focus had to be on the individual and the activities considered to be “day-to-day” within their professional life, rather than in comparison to the population as a whole. If not, there would be no assistance for workers whose disabilities hindered their ability to progress or achieve promotion in their chosen field.
Interestingly, the EAT also commented that the current exclusion of “highly specialised” activities from the meaning of “day to day activities”, set out in the Guidance on the definition of disability (2011), might not be correct in the employment context. In the employment context, the interpretation of “disability” in the Equality Act must be applied in a way which gives effect to EU law, and recent ECJ cases have confirmed that the concept of disability must be understood as referring to a hindrance to the effective participation of the worker in professional life on an equal basis with other workers (with no reference being made to excluded categories of work).
Although not legally binding on that point, the EAT’s comment perhaps marks the start of a countdown to change and a widening of the “day-to-day activities” concept in the near future. In practical terms, it means that now is probably not the time for employers to disregard their Equality Act duties just because a worker’s physical or mental impairment only affects part of their professional life. The requirement to make reasonable adjustments might still apply, as the Tribunals start to view “normal day-to-day activities” through the other end of the telescope and see the worker’s professional world as an entity with its own norms.
Partner, Workwise Legal