[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]
When assessing whether an employee is disabled should a tribunal concentrate on those activities which the employee cannot do rather than those which he can do?
Yes, says the EAT in Aderemi v London & South East Railway.
Mr Aderemi was a station assistant working in the station gate line as a first point of contact for customers and checking tickets. His role was not a static one as such but involved being on his feet for substantial periods of the day, for shifts of about 9 hours in duration.
He developed a back problem which precluded the long periods of standing at his job. He was dismissed for capability. The employment tribunal dismissed his claim for unfair dismissal and disability discrimination. In particular the tribunal held that he was not disabled because his impairment did not have a substantial adverse effect on his ability to do normal day-to-day activities. In so concluding, it set out a list of various things he could continue to do.
On appeal, the EAT held the tribunal had tackled this question in entirely the wrong way. It had set out a list of those things he could continue to do. But it failed to concentrate on various things he could not do, for example stand for periods of around 30 minutes, bend and lift, which not only hampered him at work but also may have involved substantial effects on the ability to carry out normal day-to-day activities.
Following the EAT decision in Paterson v Metropolitan Police Commissioner the focus should be on those matters which a Claimant could not do as opposed to those which he could do. The case was therefore remitted to the employment tribunal for a re-hearing.