Sobhi v Commissioner Of Police Of The Metropolis

For the purposes of Disability Discrimination Act 1995, normal day-to-day activities must be construed consistently with European Union law. They include activities relevant to a worker’s full and effective participation in professional life, even if an activity is undertaken only once or intermittently.

The relevant activity is that for which a person uses memory, rather than the bare use of memory itself. A long-term impairment affecting the ability to recall previous convictions may therefore satisfy the statutory definition where it adversely affects an application for employment or advancement.

The claimant, a police community support officer, applied to become a police constable. Fingerprints disclosed a 1991 theft conviction which she had not revealed in earlier applications. She maintained that traumatic events had caused dissociative amnesia concerning the arrest and conviction.

An Employment Judge held at a pre-hearing review that she was not a disabled person and dismissed her disability-discrimination claim. The appeal concerned whether the amnesia had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities, particularly when applying for appointment as a police constable.

1. Appeal allowed. The Employment Judge’s finding that the claimant was not a disabled person, and the consequential dismissal of her disability-discrimination claim, were set aside.

2. The Employment Judge had correctly distinguished between being placed at a substantial disadvantage and the separate statutory requirement that an impairment have a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. It was also correct that the relevant activity is an activity for which memory is used, rather than the general use of memory itself.

3. However, the statutory expression had to be construed consistently with Framework Directive 2000/78. Following Paterson and Chacón Navas, normal day-to-day activities encompass activities relevant to participation in professional life. An activity does not cease to fall within that description merely because it is intermittent or a one-off.

4. The claimant’s limited memory loss had a long-term adverse effect on activities requiring her to recall previous convictions. Applying to become a police constable was such an activity and related to her effective participation in professional life. It was therefore an activity to which section 1(1) of the Disability Discrimination Act 1995 applied.

5. The case was remitted to the employment tribunal to determine whether, when completing the February 2009 security questionnaire, the claimant knew of her amnesia. That issue, and the court’s construction of normal day-to-day activities, could affect whether the adverse effect should be characterised as substantial.

• Employment Appeal Tribunal: Appeal allowed. The finding at the pre-hearing review that the claimant was not disabled was set aside and the disability-discrimination claim was remitted.
• Employment Tribunal: At a pre-hearing review, Employment Judge Sigsworth held that the claimant was not a disabled person and dismissed the disability-discrimination claim.