Employment Cases Update

Banaszczyk v Booker Ltd UKEAT/0132/15/RN

Appeal against a finding that the Claimant’s long-term physical impairment did not have a substantial effect on his capacity to carry out normal day-to-day activities, so that he did not have a disability for the purposes of the Equality Act 2010. Appeal allowed and declaration of disability substituted by EAT.

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The Claimant was employed by the Respondent from February 2008 to work in its distribution centre, lifting packages of up to 25kg and loading them onto pallets. In February 2009, he was involved in a car accident and suffered a spine injury. He subsequently developed a long-term physical impairment to his back, a condition accepted by the Respondent, which impaired his performance in that he was unable thereafter to meet the Respondent's lifting and loading targets. The Respondent eventually dismissed the Claimant in 2013, on grounds of incapability, and he brought proceedings alleging unfair dismissal and disability discrimination. Although the Employment Judge accepted occupational health evidence that the Claimant's back condition impaired his performance at work, he nonetheless held that the Claimant's long-term impairment did not have a substantial effect on his capacity to carry out day-to-day activities and accordingly determined that he did not have a disability. The Claimant appealed, broadly on the grounds that the Employment Judge had erred in law in finding that the Claimant's work activities were not normal day-to-day activities.

The EAT allowed the appeal and substituted, for the Employment Judge's decision, a declaration that the Claimant did have a disability. Having accepted the occupational health evidence - that the Claimant's work activities were substantially and adversely affected by his physical impairment - it was not open to the Employment Judge to conclude anything other than that the Claimant was disabled for the purposes of the Equality Act 2010.

Tim Crane, Employment Law Solicitor

_______________

Appeal No. UKEAT/0132/15/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 11 September 2015

Judgment handed down on 1 February 2016

Before

HIS HONOUR JUDGE DAVID RICHARDSON

(SITTING ALONE)

BANASZCZYK (APPELLANT)

BOOKER LIMITED (RESPONDENT)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant
MR MARCIN KOZIK (Representative)
KL Law Ltd
Censeo House
6 St Peter's Street
St Albans
AL1 3LF

For the Respondent
MISS LOUISE QUIGLEY (of Counsel)
Instructed by:
Eversheds LLP
Eversheds House
70 Great Bridgewater Street
Manchester
M1 5ES

SUMMARY

DISABILITY DISCRIMINATION - Disability

The Claimant was employed as a picker in a distribution centre. It was his job to select cases and to lift and move cases by hand for loading onto pallet trucks. Following a car accident he developed a back condition: it was common ground that the back condition was a long-term physical impairment. There was occupational health evidence that this back condition impaired his performance in that he was unable to meet the "pick rate" - a target picking speed laid down by the Respondent. The Employment Judge held that his long-term physical impairment did not have a substantial effect on his carrying out normal day-to-day activities, so that he did not have a disability for the purposes of the Equality Act 2010.

Held: appeal allowed. The Employment Judge did not give adequate reasons for his conclusions; given the occupational health evidence which the Employment Judge accepted, and applying the law relating to disability laid down in Chacón Navas v Eurest Colectividades [2006] IRLR 706, Ring v Dansk Almennyttigt Boligselskab [2013] IRLR 571 and Paterson v Commissioner of Police and the Metropolis [2007] ICR 1522, the Claimant had a disability for the purposes of the Equality Act 2010.

HIS HONOUR JUDGE DAVID RICHARDSON

1. This is an appeal by Mr Banaszczyk ("the Claimant") against a Judgment of Employment Judge Mahoney sitting in the Employment Tribunal at Watford. By his Judgment dated 17 June 2014 he held that the Claimant did not have a disability for the purposes of the Equality Act 2010 at the relevant time.

2. It was common ground that the Claimant had a long-term physical impairment. His employer Booker Limited ("the Respondent") argued that this impairment did not have a substantial effect on his carrying out normal day-to-day activities. The Employment Judge accepted this argument. The question on appeal is whether he applied the law correctly, especially having regard to the definition of disability laid down by the European Court in Chacón Navas v Eurest Colectividades [2006] IRLR 706 and Ring v Dansk Almennyttigt Boligselskab [2013] IRLR 571.

The Background Facts

3. The Respondent owns and operates a chain of wholesale warehouses. The Claimant was employed on 18 February 2008 as a picker at its regional distribution centre. "Picking" involved selecting and loading cases of goods in wholesale quantities. The goods would be loaded onto a pallet truck; but they would first have to be lifted and moved by hand. Cases might weigh up to 25 kilograms.

4. The Respondent's expectation was that workers would pick 210 cases per hour; this was known as the "pick rate". The minimum acceptable standard was 85% of that figure. The "pick rate" was agreed with the recognised trade union.

5. On 10 February 2009 the Claimant was involved in a car accident. He suffered an injury to his spine. He had a period of low back pain in December 2009 and early 2010. He was then not complying with manual handling guidelines. He was given strong pain killers for 2 weeks and told that he would be able to carry on with normal duties if he complied with those guidelines.

6. In October 2011 the Claimant again went to his GP with back pain. He said he did not always use the proper lifting techniques. He was off work from 23 December 2011 until 23 January 2012. On his return he requested light duties because he felt some pain when picking for a long time or when picking heavy items. He continued with normal duties.

7. In September 2012 he had further time off work. His GP asked that he be excluded from heavy lifting because it made his back worse. The Respondent referred him to Dr Thornley, an occupational physician. He told Dr Thornley that he felt he could only manage the target picking speed on smaller items.

8. Dr Thornley's conclusions about the Claimant were set out in a letter dated 16 October 2012:

"He has a long-term problem with back pain.

He is generally unable to reach his target picking speed.

His performance is not likely to improve in the foreseeable future.

He may have further setback [sic] leading to absences from work.

If you cannot sustain the present arrangement with his impaired performance, you may eventually need to consider his continuing employability."

9. The Respondent met with the Claimant on 26 October. He said he was 100% fit for work, but the particular work was now too heavy for him. The Respondent noted that he could achieve 85% of the "pick rate" for half the time; the rest of the time he could only achieve 70% to 80%.

10. Dr Thornley saw the Claimant again on 15 February 2013. The Employment Judge summarised his opinion as follows:

"3.19. Dr Thornley's conclusion was that the claimant had a long-term history of back problems which impaired his performance. There seemed to be no realistic prospect that he would increase his picking speed to meet his target requirements. He felt it was more likely than not that he would have absences in the future because of his back."

11. The Claimant was eventually dismissed on the ground of incapability in July 2013. He brought proceedings alleging unfair dismissal and disability discrimination.

The Employment Judge's Reasons

12. A Preliminary Hearing took place to determine whether the Claimant had a disability at the material time, which was taken to be from 1 August 2011 until 5 July 2013. Both parties were represented. The Employment Judge had an "impact statement" from the Claimant, setting out the effect of his physical impairment. The Claimant gave evidence. There was an agreed bundle which included, in addition to the letters of Dr Thornley to which I have referred, some notes and correspondence from the Claimant's GP.

13. The Employment Judge, before he summarised the medical evidence, said the following:

"3.6. So far as the claimant's evidence to the tribunal is concerned, I considered that in certain respects his evidence was exaggerated, particularly in respect of what he cannot do and I do not accept his evidence where it conflicts with the contemporaneous medical reports and notes which were before the tribunal."

14. Thereafter the Employment Judge made findings of fact on which I have already drawn in this Judgment. It appears that he accepted the evidence of Dr Thornley (which was also supported by the GP) as to the impact of the Claimant's physical impairment on his work. He did however also make findings as to the Claimant's activities outside work. He found that the Claimant was able to go shopping with his partner by car. He could take items from the shelves, put the shopping in the car, and take lighter items out of the car into the house. He could clean windows at ground floor level. He was learning to drive and could go out in a car, supervised by his partner. In September 2012 he had been able to fly to Poland.

15. The Employment Judge incorporated in his Reasons a section, from paragraphs 6.1 to 6.11, setting out the law. He identified relevant provisions of the Equality Act 2010. He referred to aspects of the 2011 Guidance. I will return to these provisions. He referred to an old decision of the Employment Appeal Tribunal - Condappa v Newham Health Care Trust EAT/452/00.

16. Until this point the Employment Judge had referred only to UK legislation, guidance and authority. Then, however, he acknowledged the existence of a European dimension to the question he had to decide. He said:

"6.9. In Paterson v Commissioner of Police and the Metropolis [2007] ICR 1522 the Employment Appeal Tribunal concluded that "normal day-to-day activities" must be interpreted as including activities relevant to professional life following the European Court of Justice decision in Chacon Navas v Eurest Colectividades SA [2006] IRLR 706."

17. The Employment Judge then made reference to recent decisions of the Employment Appeal Tribunal following Paterson - Chief Constable of Dumfries & Galloway Constabulary v Adams [2009] IRLR 612 and Sobhi v Commissioner of Police of the Metropolis [2013] UKEAT/0518/12/BA. He concluded his section of the law by quoting appositely the Judgment of the European Court of Justice in Ring.

18. The Employment Judge then set out his conclusion in a single paragraph. This reads:

"7. Having considered the law as set out above and applied it to the findings of fact I have made, I come to the conclusion that the claimant was not a disabled person within the meaning of the Equality Act 2010 because the claimant's long-term physical impairment did not have a substantial effect on his carrying out normal day-to-day activities."

Submissions

19. On behalf of the Claimant Mr Marcin Kozik (who had appeared for the Claimant below) submitted that the Employment Judge accepted the medical evidence as to the Claimant's inability to meet the "pick rate" by reason of his back condition. This being so, he cannot have applied the definition of disability set out in Chacón Navas and Ring, for the Claimant's impairment undoubtedly hindered his participation in working life. The concept of "normal day-to-day activities" had to be read as encompassing the skills required for work: see Paterson and Sobhi. It would be an error of law to find that the activity of "picking" was not a normal day-to-day activity; and the Employment Judge had given no reason for this finding. If he relied on Condappa or upon the 2011 Guidance in preference to the definition in Chacón Navas and Ring he was in error to do so. On any possible view, the Judgment was not sufficiently reasoned; and if necessary he would submit that the conclusion was perverse.

20. On behalf of the Respondent Miss Louise Quigley agreed that the Employment Judge had accepted the medical evidence as to the Claimant's inability to meet the "pick rate". She submitted, however, that the Employment Judge's conclusion was open to him as a matter of law. He had correctly cited, and evidently considered himself bound by, the decisions in Chacón Navas and Ring. These decisions were not authority for the proposition that an Employment Tribunal was bound to construe "normal day-to-day activities" as meaning any and all duties or aspects of professional life. She submitted, for example, that the concept of "professional life" was plainly not meant to refer to the case of a special skill such as the silversmith or watchmaker limited in some activity that the use of their particular tools requires: see Adams at paragraph 20, a passage upon which she placed particular reliance. Rather the concept was intended to apply to activities which are common across a range of different work situations. The Claimant adduced no evidence to the effect that the "pick rate' in question was an activity of this kind. The Employment Judge was entitled to find that it was not. His reasoning was sufficiently apparent: it is clear that the Employment Judge found that the pick rate was not a normal day-to-day activity and that the level of impairment was not substantial.

EU Law

21. It is common ground between the parties that UK Employment Tribunals must apply European law relating to disability discrimination in employment and occupation. This law derives most immediately from the Equality Directive (Council Directive 2000/78/EC, establishing a general framework for equal treatment in employment and occupation). The Equality Directive prohibits discrimination on the grounds of disability (see Articles 1 and 2) and also requires reasonable accommodation for persons with disabilities (see Article 5).

22. The Equality Directive itself did not lay down any definition of disability. The European Court of Justice has done so most recently in Ring, revisiting Chacón Navas in the light of the EU's approval of the United Nations Convention on the Rights of Persons with Disabilities. The Convention was adopted by the United Nations in 2006 and ratified by the EU in 2009. In Ring the European Court of Justice said:

"37. The UN Convention, which was ratified by the European Union by decision of 26 November 2009, in other words after the judgment in Chacón Navas had been delivered, acknowledges in recital (e) that 'disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others'. Thus the second paragraph of Article 1 of the convention states that persons with disabilities include 'those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others'.

38. Having regard to the considerations set out in paragraphs 28-32 above, the concept of 'disability' must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers."

23. Later the European Court confirmed that the definition does not imply complete exclusion from work or professional life. It must be understood as referring to a hindrance to the exercise of a professional activity not to the impossibility of exercising such an activity: see paragraphs 42 to 43. The European Court also confirmed that the definition applies only where a physical, mental or psychological impairment is long-term: see paragraph 32.

UK Law and Guidance

24. UK law concerning disability discrimination in the employment field is derived from the Equality Act 2010, which in turn built upon the Disability Discrimination Act 1995. This legislation - unlike the Equality Directive - is not limited to the field of employment and occupation.

25. The definition of disability is contained in section 6 of the 2010 Act, which provides:

"(1) A person (P) has a disability if -

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities."

26. Schedule 1 to the Equality Act sets out supplementary provision concerning the determination of disability. It does not contain any provision as to what may amount to "normal day-to-day activities". However, section 6(5) (together with part 2 of Schedule 1) provides that a Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of section 6(1).

27. In 2011 there was issued "Guidance on matters to be taken into account in determining questions relating to the definition of disability". The Guidance does not purport to be an authoritative statement of the law. But Employment Tribunals are required to take into account any aspect of the Guidance which appears to be relevant: see Schedule 1, paragraph 12 of the Equality Act.

28. Section D of the Guidance, which is concerned with the meaning of "normal day-to-day activities". The Employment Judge cited from paragraph D4:

"The term 'normal day-to-day activities' is not intended to include activities which are normal only for a particular person, or a small group of people. In deciding whether an activity is a normal day-to-day activity, account should be taken of how far it is carried out by people on a daily or frequent basis. In this context, 'normal' should be given its ordinary, everyday meaning.

29. It is relevant, in the light of Miss Quigley's submissions, to note that the Guidance contains a section on specialised activities: see paragraphs D8 to D10. It suggests that "In some instances work-related activities are so highly specialised that they would not be regarded as normal day-to-day activities"; and it gives the example of the watch repairer carrying out delicate work with highly specialised tools, or the pianist who plays to a high standard and performs in public. It also suggests, however, that many types of specialist work-related or other activities may still involve normal day-to-day activities - such as keeping records, preparing invoices and the like.

30. The Employment Judge did not cite from the section of the Guidance (section B) which addresses the question of "substantial adverse effect". The Guidance suggests that the requirement of a substantial adverse effect "reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people". Paragraph B2 states:

"The time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time it might take a person who did not have the impairment to complete an activity."

31. The Employment Judge did, however, cite from the Appendix, which sets out an illustrative and non-exhaustive list of factors which it would be reasonable to have, or not to have, a substantial adverse effect on normal day-to-day activities. On one side of the line he cited "Difficulty picking up and carrying objects of moderate weight, such as a bag of shopping or a small piece of luggage, with one hand". On the other he cited "Inability to move heavy objects without assistance or a mechanical aid, such as moving a large suitcase or heavy piece of furniture without a trolley".

32. The Appendix contains several work-related examples of factors which it would not be reasonable to have a substantial adverse effect on normal day-to-day activities. These include "Inability to reach typing speeds standardised for secretarial work"; "Inability to concentrate on a task requiring application over several hours"; and "Inability to undertake activities requiring delicate hand movements, such as threading a small needle or picking up a pin".

33. As I have already mentioned, the definition of disability in the 2010 Act and the Guidance do not apply only in the field of employment and occupation. In that field, however, it is now established law that the definition of "disability" must be applied in a way which gives effect to EU law.

34. In Paterson the Claimant suffered from dyslexia. This condition had not prevented him from passing a number of examinations and rising to the post of Chief Inspector. His case was that he required adjustments to the processes for determining whether he might be promoted to Superintendent. The Employment Tribunal held that the taking of promotion examinations or assessments was not a normal day-to-day activity. The Employment Appeal Tribunal allowed the appeal.

35. On the question of day-to-day activity the Employment Appeal Tribunal held that carrying out an assessment or examination is properly to be described as a normal day-to-day activity. The Employment Appeal Tribunal said:

"66. … We would have reached that conclusion simply taking domestic law on its own without any reference to the decision in Chacón. In our view carrying out an assessment or examination is properly to be described as a normal day-to-day activity. Moreover, as we have said, in our view the act of reading and comprehension is itself a normal day-to-day activity. In any event, whatever ambiguity there may be about that, in our view the decision of the Court of Justice in Chacón Navas is decisive of this case.

67. We must read section 1 of the 1995 Act in a way which gives effect to European Community law. We think it can be readily done, simply by giving a meaning to day-to-day activities which encompasses the activities which are relevant to participation in professional life. Appropriate measures must be taken to enable a worker to advance in his or her employment. Since the effect of the disability may adversely affect promotion prospects, then it must be said to hinder participation in professional life."

36. On the question whether the impairment had a substantial effect on the Claimant's ability to carry out the normal day-to-day activity, the Employment Appeal Tribunal said:

"68. … In our judgment, the only proper basis, as the Guidance makes clear, is to compare the effect on the individual of the disability, and this involves considering how he in fact carries out the activity compared with how he would do if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are substantial."

37. The focus is therefore upon the impact of the impairment on the individual. The question is not whether the individual is disadvantaged compared with the population as a whole. The Employment Appeal Tribunal explained why this was so in paragraph 70 of its Judgment:

"70. … The purpose of the legislation, at least in part, is to assist those who are disabled to overcome the disadvantages which stem from a physical or mental impairment. … Take someone who has all the skills to be a highly successful accountant, but lacks manual dexterity. This may require that he or she should be given longer to do the relevant examinations. It would surely be no answer and would be wholly inconsistent with the purposes of the legislation, simply to say that that individual was not disadvantaged when compared with the population at large and therefore no obligation to make the adjustment arose. …"

38. This approach was applied in Adams (police work on night shifts a normal day-to-day activity) and Sobhi (completion of an application to become a police officer, including a security questionnaire, a normal day-to-day activity).

Conclusions

39. It is convenient to begin with the Employment Judge's Reasons. The Reasons for a Judgment of the Employment Tribunal are required to state the findings of fact made in relation to an issue, concisely identify the applicable law and explain how that law has been applied to those findings in order to decide the issues: see Rule 62(5) of the Employment Tribunal Rules 2013, which states succinctly the effect of long-standing authority in this area, including Meek v City of Birmingham District Council [1987] IRLR 250.

40. I have found it impossible to discern from his Reasons why the Employment Judge decided the case as he did. His final paragraph amounts to no more than a conclusion without reasoning. When I first read the paragraph I thought it possible that (1) he had rejected the evidence of the Claimant and Dr Thornley about the impact of his impairment on his work, (2) he had concluded that the work which the Claimant said was affected did not amount to "day-to-day activities", or (3) he had concluded that the Claimant's physical impairment did not have a substantial effect on his ability to carry out those activities.

41. As to (1), Mr Kozik and Miss Quigley were in agreement that the Employment Judge accepted the Claimant's evidence in so far as it was in accordance with medical evidence, and therefore that the Employment Judge accepted the findings of Dr Thornley which I have quoted concerning the effect of the Claimant's physical impairment on his work. I agree with them: it seems that the Employment Judge rejected the Claimant's evidence only about his activities outside work rather than at work.

42. This still leaves (2) and (3). It is impossible to know whether the Employment Judge reached either or both of these conclusions, and if so why he reached them. The Employment Judge's Reasons do not reach the minimum standard required by law; and therefore the appeal must be allowed.

43. At this point I must acknowledge a limitation on the powers of the Employment Appeal Tribunal. It has jurisdiction only to entertain an appeal on a question of law. It must not substitute its own view on any question of fact. It follows that if an Employment Tribunal has failed to give sufficient reasons or otherwise erred in law the matter must be remitted for further consideration by the Employment Tribunal unless, on the Employment Tribunal's findings of fact, only one result is possible. The position was re-stated in this way by the Court of Appeal in Jafri v Lincoln College [2014] IRLR 544 at paragraph 21 (Laws LJ):

"21. … If therefore the EAT detects a legal error by the ET, it must send the case back unless (a) it concludes that the error cannot have affected the result, for in that case the error will have been immaterial and the result as lawful as if it had not been made; or (b) without the error the result would have been different, but the EAT is able to conclude what it must have been. In neither case is the EAT to make any factual assessment for itself, nor make any judgment of its own as to the merits of the case; the result must flow from findings made by the ET, supplemented (if at all) only by undisputed or indisputable facts. Otherwise, there must be a remittal."

See also paragraphs 43 to 47 (per Underhill LJ).

44. Applying this approach, I have concluded that, once granted the Employment Judge accepted the evidence of Dr Thornley, there was indeed only one possible outcome: the Claimant had a disability for the purposes of the Equality Act 2010.

45. In this case there was no dispute that the Claimant had a physical impairment whose effect was long-term. The question was whether it had a substantial adverse effect on his ability to carry out normal day-to-day activities.

46. It is plain that the Claimant's physical impairment had an adverse effect on his ability to do his work. The first question for the Employment Judge was whether the activities affected were "normal day-to-day activities", applying the approach laid down in Paterson and Ring. The facts about his normal day-to-day activities at work were undisputed. He was a warehouse operative lifting and moving goods in part manually and in part by the use of a pallet truck; and the goods might weigh up to 25kg. This is, in the context of work, a normal day-to-day activity: no-one with any knowledge of modern UK life working life could doubt that large numbers of people are employed to work lifting and moving cases of up to 25kg across a range of occupations, including in particular occupations concerned with warehousing and distribution.

47. Miss Quigley focused her submissions on the pick rate: she argued that this feature of the Claimant's work meant that what he did was not a "normal day-to-day activity". I reject that submission. It confuses the activity itself with a particular requirement of an employer as to the speed with which the activity is performed. It is to my mind essential, if disability law is to be applied correctly, to define the relevant activity of working or professional life broadly: care should be taken before including in the definition the very feature which constitutes a barrier to the disabled individual's participation in that activity. In this case the activity was the lifting and movement of goods manually; the employer's "pick rate" was not the activity, but a particular requirement of the employer as to the manner and speed of performance.

48. Miss Quigley also sought to equate the Claimant's case with that of the specialist worker such as the silversmith or watchmaker. I think she may have intended to submit that it was the high "pick rate" which took the Claimant into the class of specialist worker. I have already explained why the day-to-day activity is not to be defined by reference to the "pick rate". If she intended to say that the activity of lifting and moving cases itself took the Claimant into the class of specialist worker, I disagree. I confess to some doubt whether the 2011 Guidance relating to specialised activities remains entirely correct in the employment context in the light of the Ring definition; but I need not address that matter further since it is not remotely arguable that the Claimant's activities could be said to fall into that class.

49. I turn then to the question whether the effect of the Claimant's physical impairment was substantial. I have reached the conclusion that it also follows from Dr Thornley's reports that the Claimant's physical impairment had a substantial effect on his ability to carry out his normal day-to-day activities; no other reading of his report is feasible. I have already quoted from paragraph B2 of the Guidance, which is plainly correct in law: the time taken to perform an activity must be considered when deciding whether there is a substantial effect. The effect of the Claimant's long-term physical impairment was that he was significantly slower than others - and significantly slower than he would himself have been but for the impairment - when carrying out the activity of lifting and moving cases.

50. Put shortly, the day-to-day activity was the lifting and moving of cases up to 25 kilograms; the substantial adverse effect was that the Claimant was by reason of his back condition significantly slower in carrying out this activity; the "pick rate" imposed by the Respondent was not the activity; but it was potentially a barrier which interacted with the Claimant's disability to hinder his full participation in working life.

51. Accordingly the appeal is allowed; and there will be substituted for the Employment Judge's decision a declaration that the Claimant had at the relevant time a disability for the purposes of the Equality Act 2010.