Mr C Adams was appointed as a probationary police constable in November 2005. In December 2005 he was diagnosed with possible fibromyalgia (pain and stiffness in muscles, ligaments and tendons). He worked a shift system including night shifts.
By early February he was struggling to complete night shifts. Between March and May he worked day shifts only and was free of symptoms, but when he returned to night shifts in May his symptoms returned. He suffered mobility problems for the last two hours of the night shift until his dismissal in February 2007.
Adams claimed disability discrimination. The initial question for the tribunal was whether he was disabled for the purposes of the Disability Discrimination Act (DDA) 1995.
The employment tribunal found that Adams was disabled. On appeal to the EAT, the Chief constable argued that the tribunal should have found that Adams was not carrying out normal day-to-day activities when he experienced mobility problems.
The EAT refused the appeal. It said that a question may arise whether work of a particular form can be a normal day-to-day activity and used the example of a skilled watchmaker operating specialised tools to craft fine objects. The EAT said that this would not be a normal day-to-day activity.
It said that when assessing whether a person is limited in their normal day-to-day activities it is relevant to consider whether they are limited in an activity which is to be found across a range of employment situations. Something that a person does only at work may be classed as normal if it is common to different types of employment. The EAT said that night-shift working is common in the UK and that there are enough people who work on night shifts for working between 2am and 4am to be classed as a normal day-to-day activity.
The activities which Adams had difficulty carrying out: namely walking, climbing stairs, driving and undressing, were normal day-to-day activities. As the effect of Adams' condition on his ability to carry out those activities was substantial and long-term, he was disabled for the purposes of the DDA.
The Chief constable sought to argue that a night shift is a particular part of a policeman's job and could not be classed as a normal day-to-day activity, and activities that would otherwise be classed as normal and day-to-day could fall outside that definition simply because of when they are carried out. The EAT was very clear, however, that while there are aspects of a policeman's job that require a special skill in exercising them, the specific activities which caused Adams difficulty were commonplace and took place at a time of night when there are many other people doing the same thing.
Under the proposals contained in the recently published Equality Bill, the definition of disability will remain the same (i.e. a person has a disability if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on that person's ability to carry out normal day-to-day activities) and the position will remain as stated in this case. The explanatory notes give the example of a warehouseman who develops a heart condition and no longer has the ability to lift or move heavy items of stock. Lifting and moving such heavy items would not be a normal day-to-day activity but if he is also unable to lift, carry or move moderately heavy everyday objects he would be likely to be considered to be a disabled person.
Personnel Today, 5th May 2009