Providers need to be alive to the risk of contractors becoming insolvent and how to limit the resulting inevitable disruption.
The EAT decided that a warehouse worker, who had difficulty lifting up to 25kg, was disabled for the purposes of the Act.
Mr Banaszczyk worked in a distribution centre and was employed to lift and move cases by hand for loading onto pallet trucks. A long term back condition meant that he could not lift items at work of up to 25kg but was able to do other certain day to day activities, such as carry a bag of shopping. Mr Banaszczyk was dismissed on the grounds of capability as he could not achieve the standards of work set by his employer for lifting certain items.
The Employment Tribunal found that this condition did not have a substantial adverse effect on his ability to carry out normal day to day activities as its impact was limited to manual lifting of items up to 25kg at work, thus was not a ‘normal day to day activity’ for the purposes of the Equality Act. The EAT disagreed. They considered that modern UK working requires many employees to lift heavy items of up to 25kg across a range of occupations. They suggested that employers should look at the activity itself, which in this case was the lifting and moving of cases and it was clear that Mr Banaszczyk’s ability to do lifting and carrying at work was impaired because of his back condition.
The decision is surprising. There are likely to be a number of people who would struggle to lift 25kg, but would not normally be regarded as disabled within the meaning of the Equality Act. In addition, guidance to the Act on matters to be taken into account in determining disability says that an inability to move heavy objects without assistance or mechanical aid, such as moving large suitcases or a heavy piece of furniture, would not be a day to day activity.
Consequently, watch this space for a further appeal on this decision. In the meantime, employers should bear this decision in mind if an employee is struggling to perform tasks for a health related reason.
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Please contact Kate Watkins for information or advice on employment issues.
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