Many of Worldview’s readers will be familiar with the test for disability under the UK Equality Act 2010. In short, a person has a disability if he has a physical or mental impairment which has a “substantial and long-term adverse effect on that person’s ability to carry out normal day-to-day activities”.  When the Minister responsible for what was then the Disability Discrimination Act was asked in Parliament what constituted “substantial” for these purposes, he rose heavily to his feet and pronounced that it “was commonly understood to mean more than minor”.  A grateful nation thanks you, Minister.

However, when trying to determine the extent of the adverse effect, should an employer (or for that matter, a Tribunal) concentrate on the activities that the individual is still able to do, even with the impairment, or to look instead at what the impairment stops him doing?

It is all about what the individual cannot do, said the EAT in the recent case of Aderemi – v – London and South Eastern Railway Limited. Mr Aderemi was employed as a Station Assistant at London Bridge station. His role involved standing for long periods of time (sometimes 9 hours in the course of a day) at the ticket barriers. As a result, he developed lower-back pain and was no longer able to carry out his role. He was dismissed on capability grounds.

He brought a claim for disability discrimination, but in the first instance the Tribunal found that he was not disabled and the claim was dismissed. In doing so, the Tribunal relied on the various things that the Claimant was able to do, despite his condition.  The problem was that, in making this assessment, the Tribunal almost entirely ignored the numerous innocuous day-to-day activities which the Claimant was not able to do any more, such as stand for periods of 30 minutes, bend or lift.

As a result, the appeal was allowed by the EAT and the question of whether or not Mr Aderemi was disabled at the relevant time will be a question for the remitted Tribunal. However, while accepting that it did not have all of the relevant information before it, the EAT was unstintingly critical of the original Tribunal’s approach. In a triumph of numerous negatives, it commented that “it would be very close to perverse, if not over the line, to conclude that the Claimant was not suffering from something which had a not insubstantial effect upon his day-to-day activities”.  Or something like that.

Easy for the EAT to say. In a nutshell, employers should look at what individuals are stopped or hindered from doing by their impairment, rather than what they are still able to do, when assessing the existence or otherwise of a statutory disability.