The EAT’s decision in Banaszczyk v Booker Ltd highlights that if there is a question as to whether an employee is disabled, there needs to be a careful analysis of case law, and the contents of the statutory document,  “Guidance on matters to be taken into account in determining questions relating to the definition of disability” (‘the Guidance’), within the context of a medical opinion.

B was a picker at a distribution centre. He was expected to achieve a pick rate, agreed by the union, of 210 cases per hour, with each case weighing up to 25 kilograms. The minimum acceptable standard was 85% of that figure. B was involved in a car accident. He suffered an injury to his spine causing him to suffer back pain.  He experienced difficulties meeting pick rate targets. B was referred to an occupational physician, Dr Thornley, who found B has a long-term back problem, he would be unable to reach his picking target and there was no likelihood of an improvement.  B was eventually dismissed and he alleged unfair dismissal and disability discrimination.

An employment judge (EJ) first had to decide if B is disabled. He considered Dr Thornley’s medical report and reviewed case law on the meaning of disability, including that normal day-to-day activities encompasses those relevant to participation in professional life. The EJ also referred to the Guidance. The EJ concluded that B was not disabled because his impairment did not have a substantial adverse effect on his carrying out normal day-to-day activities, but gave no reasons.

The EAT upheld B’s appeal. No-one with any knowledge of modern UK life working life could doubt that large numbers of people are employed to lift and move cases of up to 25kg across a range of occupations. Having accepted the occupational health evidence – that the Claimant’s work activities were substantially and adversely affected by his physical impairment – and applying the case law relating to disability, there could be no conclusion other than B had a disability for the purposes of the Equality Act 2010.

A major problem in this case was the EJ not giving reasons for reaching his conclusion. In a workplace context, if an employer is disputing that an employee is disabled, reasons need to be given. This is where legal advice may be necessary. As the Guidance points out, normal day-to-day activities can include general (but not specialised) work-related activities carried out by people on a daily or frequent basis.

The difficulty in these circumstances is that the Guidance says it would be reasonable to conclude that difficulty picking up and carrying objects of moderate weight with one hand could amount to an adverse impact, but the inability to move heavy objects without assistance or a mechanical aid, would not. The facts in this case fell between the two, but the medical advice was the ‘clincher’ in B’s favour.

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