Mrs Elizabeth Boyle suffered from vocal cord nodules causing hoarseness. In December 1991, she was advised to follow a regime designed to reduce stress on the throat and voice. She had surgery and began a routine that included sipping water throughout the day, refraining from raising her voice, and avoiding background noise. The nodules did not recur. However, in 2000, her employer removed a partition that separated her from a stock control room. She subsequently brought a claim for disability discrimination against her employer, SCA Packaging Limited in a Northern Ireland industrial tribunal.
SCA disputed whether Boyle was disabled for the purposes of the Disability Discrimination Act 1995 (DDA). Section 1(1) of the DDA states that a person has a disability if he/she has a physical or mental impairment that has a substantial and long-term effect on his/her ability to carry out normal day-to-day activities. Schedule 1 to the DDA supplements this by stating that an impairment which would be ‘likely’ to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as ‘having that effect’.
The guidance on matters to be taken into account in determining questions relating to the definition of disability, which must be considered by a tribunal determining whether a person is disabled, states: “It is likely that an event will happen if it is more probable than not that it will happen”. Applying this test, the tribunal found that the vocal nodules were ‘likely’ to recur if Boyle did not follow her voice management regime.
However, the Northern Ireland Court of Appeal (NICA) took a different view, holding that ‘likely’ in the DDA context means that something ‘could well happen’, which is an easier threshold for a claimant to cross. NICA dismissed SCA’s appeal. SCA then appealed to the House of Lords.
It dismissed SCA’s appeal unanimously. The House of Lords considered that ‘likelihood’ is a variable concept, and, having considered the purpose of the DDA, the House of Lords agreed with the NICA that the appropriate meaning of ‘likely’ in the Act is ‘could well happen’, which it considered to be a broader and less exacting test than ‘more probable than not’.
This case concerned the so-called deemed effect provisions of the DDA by virtue of which a person who is not disabled will be treated as being disabled if they have an underlying impairment that would be a disability, but the effect of medical treatment or other corrective measures is such that they are able to function more normally. The word ‘likely’ also appears in other provisions in Schedule 1 to the DDA, and would now be interpreted in the same way.
The effect of this decision is that it will be easier for claimants to establish that they are entitled to the protection conferred by the DDA, and employers will need to be more wary of how they treat employees with well-managed health problems.
The House of Lords also disapproved of the Industrial Tribunal’s decision to convene a preliminary hearing to decide whether Boyle was disabled, as in this case it contributed to delay. In many cases, the issue of whether an employer could reasonably be expected to make adjustments will involve the same evidence as determination of whether the employee is disabled.
Louise Hendry, employment lawyer, DLA Piper