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Important Case:  House of Lords considers Disability Discrimination Act

The House of Lords held  that the word 'likely' as used in the Disability Discrimination Act 1995 should be interpreted as meaning 'could well happen', rather than 'more likely than not'.

The House of Lords has handed down its important decision in the case of SCA Packaging v Boyle - concerning the definition of disability and the deduced effects provision of the Disability Discrimination Act.

The background to the case

The Claimant had suffered for a long period, since 1974, from hoarseness and loss of voice caused by vocal nodules. She was an active member of her local community involved in singing, amateur dramatics and committee work. Her condition deteriorated affecting her speech making it difficult for her to communicate.

Eventually she had surgery to remove the nodules and was placed by her speech therapist on a management regime which she observed strictly. The Claimant had occupied her own office prior to this and argued that to share with others would seriously compromise her vocal hygiene.

The Court affirmed the Claimant position in respect of the above and upheld a tribunal’s previous decision that it was 'more likely than not' that the substantial adverse effect of the impairment would have continued. In order to decide whether an illness qualified as a disability as defined by the DDA 1995, the Court had to deliberate the meaning of the word 'likely' in two specific contexts: (1) the likelihood of a substantial adverse effect if the corrective measures were not taken and (2) the likelihood of a recurrence of that effect at some point in the future.

Wiping the slate clean, the Court ruled that "likely" should be interpreted as "could well happen", a significantly lower hurdle for a Claimant to overcome than the previous interpretation of "more probable than not".  The House of Lords firmly rejected previous authority that 'likely' was taken to mean a 51% chance.

Lord Hope said the case was important for people with intermittent conditions who needed protection under the law.  He said that these people included “those suffering from conditions such as diabetes or epilepsy whose disability is concealed from public view so long as it is controlled by medication. Their disability is insidious. The measures that are taken to treat or correct it, so long as they are effective, enable them to carry on normal day-to-day activities just like everyone else. But the disability is there nevertheless.

The case will now return to the Northern Ireland Employment Tribunal to consider if Mrs Boyle has been subjected to unlawful discrimination based on her disability.

How should employers react?

The decision of the Northern Ireland Court of Appeal will carry weight in England.  Managers should not automatically assume that short-term conditions will not come under the DDA.

Pearson Hinchliffe Commercial Law can advise you on employment law matters, especially claims invoking the Disability Discrimination Act 1995.

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