Aderemi v London and South Eastern Railway Ltd

When determining whether an impairment has a substantial adverse effect on normal day-to-day activities, a tribunal must focus on what the claimant cannot do, rather than principally on activities which remain possible. It must assess the adverse effect on the claimant’s ability and then decide whether that effect is more than minor or trivial. Substantiality is a binary statutory question, not a sliding scale. Relevant work activities may be normal day-to-day activities when considered at a sufficiently general level, even though a highly specialised job or precisely described task may not be. The Equality Act 2010 requires a broad and purposive approach. The relevant date for assessing disability is the date of the alleged discriminatory act.

The claimant, a station assistant, suffered lower-back pain which restricted prolonged standing, bending, lifting and carrying. His employment involved standing for substantial periods and he was dismissed on capability grounds after medical restrictions prevented him from performing his duties.

The Employment Tribunal dismissed his disability discrimination and unfair dismissal claims. It accepted the physical impairment but concluded that it had no substantial adverse effect on normal day-to-day activities. The claimant appealed, contending that the Tribunal had concentrated on what he could do, excluded relevant work activities and failed to apply the approach in Paterson and Adams.

1. Appeal allowed and remitted. The Employment Tribunal had adopted an erroneous approach to disability under section 6(1)(b) of the Equality Act 2010. The disability issue was remitted for rehearing. The unfair dismissal issue also required reconsideration because the disability finding could affect the fairness of the dismissal.
2. The statutory inquiry concerns an adverse effect on the claimant’s ability to carry out normal day-to-day activities. The Tribunal must focus on the activities the claimant says he cannot perform because of the impairment, and compare his actual ability with his ability without the impairment. It must then decide whether the effect is substantial within section 212(1), meaning more than minor or trivial.
3. Substantiality does not lie on a continuous spectrum. The question is whether the effect is trivial or insubstantial; if it is not, it is substantial. Guidance which contrasts clearly trivial and clearly substantial effects must not be treated as creating intermediate degrees of substantiality.
4. Normal day-to-day activities may include work activities which are common across different employment situations. The relevant assessment should not be defeated by describing the activity at an excessively specific level, such as the precise duties of one particular job. Prolonged standing in employment could therefore be a relevant normal day-to-day activity. A highly specialised task remains less likely to qualify.
5. The Tribunal’s reasoning concentrated on activities the claimant could perform, gave insufficient attention to his inability to stand, bend, lift and carry, and arguably treated work activities as immaterial. It also failed to determine whether the impairment was long-term. The rehearing must assess disability as at 28 October 2010, including whether the adverse effect continued or was likely to continue for at least 12 months.

• Employment Tribunal, London South: dismissed the claimant’s disability discrimination and unfair dismissal claims in reasons delivered on 29 September 2011.
• Employment Appeal Tribunal: allowed the appeal, set aside the approach to disability, and remitted the disability and consequential unfair dismissal issues for rehearing.