In Aderemi v London & South East Railway, the EAT held that an employment tribunal had erred in its approach in deciding that a station assistant, whose job involved him being on his feet for substantial periods of the day, was not disabled. The tribunal had concluded that he was not disabled because his impairment did not have a substantial adverse effect on his ability to do normal day-to-day activities because of the list of various things he could continue to do. The EAT held that the tribunal had approached its task in entirely the wrong way. It should have focused on the various things he could not do, such as inability to stand for periods of longer than 30 minutes, bending and lifting, etc., which hampered him at work and in his everyday life. The case was therefore remitted to the employment tribunal for a re-hearing.
This case reminds us that, as other divisions of the EAT have held, the focus for tribunals and employers should be on considering how the individual carries out day-to-day activities compared with how he/she would do it if not suffering the impairment and thereby assessing what the individual cannot do. If that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are substantial.
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