This case involved an appeal by an employee against a decision of an employment tribunal who dismissed his claims of Unfair Dismissal and disability discrimination against his employer. The appellant had been employed as a station attendant at London Bridge Station. His role required him to stand on his feet for substantial periods during his nine-hour shifts. The prolonged standing appeared to have affected his back, causing him lower back pain. The employee was dismissed for reasons of capability, after he claimed to have great difficulty performing the ordinary contractual duties of his post. He consequently claimed that the dismissal amounted to discrimination under the Equality Act 2010 and was unfair.

To establish unfairness under the Act, the employee had to satisfy the tribunal that he was disabled. The tribunal found that, although he had a physical impairment which sometimes caused him severe pain, it did not have a substantial long-term effect on his ability to carry out normal day-to-day activities.

In deciding whether the employee was disabled, the tribunal did not address what activities the employee could not do as a consequence of the condition, but concentrated instead on matters which he could do. It was clear from the Act that the focus of a tribunal had to be upon what a claimant maintained he could not do as a result of his physical or mental impairment and not what he could do. Once a claimant had established an adverse effect on his ability to carry out day-to-day activities, a tribunal had to assess whether it was substantial. The tribunal then had to bear in mind the definition of substantial under s212 (1) which was more than minor or trivial. Thus, the tribunal had taken the wrong approach in determining the question of disability and therefore the matter would be remitted. http://www.employmentappeals.gov.uk/Public/Upload/12_0316fhwwJMKN.doc