Is the employee disabled under the Equality Act 2010?

In this case, the Employment Appeal Tribunal gives handy assistance for establishing whether someone is considered as disabled for the purposes of protection under the Equality Act 2010.

The Claimant began working on the Respondent’s distribution centre warehouse in February 2008. His role as a Picker involved lifting crates weighing up to 25 kg and placing them onto pallet trucks. This lifting and moving of crates was done by hand by the employees. The Respondent kept track of the workers’ “pick rate” and set an expectation of 210 crates per hour. They also set 85% of this number as the minimum accepted pick rate.

In February 2009 the Claimant was involved in a car accident and suffered a spinal injury. Later in December 2009 and early 2010 he suffered from lower back pain as a result from his accident and was taking strong painkillers during that period. His back pain returned in October 2011 and he admitted to his GP that he was not keeping in line with the manual handling guidelines which give ways to reduce the risk when lifting heavy or bulky loads. The Claimant was then off work for a month. When he returned he requested light duties, but his request was refused and he continued with his normal duties despite the pain he was experiencing from lifting continuously. After a further absence period, the Respondent referred the Claimant to an occupational physician, who concluded that due to his long-term back problem Mr Banaszczyk was generally unable to reach the target pick rate. He also said that his performance was unlikely to improve which may lead to further time off work. The Claimant’s performance showed that he usually reached between 70% – 80% of the target rate. Supported by the occupational health report, the Respondent dismissed the Claimant in July 2013 by reason of incapability. Mr Banaszczyk filed complaints of unfair dismissal and disability discrimination.

The Employment Appeal Tribunal decided that the Claimant was disabled for the purposes of the Equality Act 2010 because his work was substantially and adversely affected. The EAT Judge held that when the original ET accepted the evidence from the occupational report, the only possible conclusion was that the Claimant had a disability. The EAT was satisfied that his normal day-to-day activities at work involved lifting and moving objects up to 25 kg. The EAT held that lifting such objects fell within the definition of normal day-to-day activities, making him disabled under the Equality Act definition. The employer’s pick rate was found, however, not to be a ‘day to day’ activity.

Banaszczyk v Booker Ltd

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