Key points
- It is now easier for employees or claimants to establish that they are disabled under the DDA because “could well happen” is a less exacting test than the previous test of “more likely than not”.
- It is likely that the new definition will also apply to paragraphs 2(1) and 8(1) of Schedule 1 of the DDA where “likely” also appears following the comments of one of the Lordships.
- Their Lordships also indicated that they favoured the issue of whether a claimant is disabled being determined at a substantive Tribunal hearing not a pre-hearing review.
What you should do
Successful treatment of an impairment, such as Mrs Boyle’s management regime, can mask an underlying disability so always consider health-related concerns raised by employees seriously, together with the duties as an employer under the DDA even if, at first, the employee does not appear to be disabled.
The House of Lords has ruled that “likely” means “could well happen” when considering whether someone is disabled under the Disability Discrimination Act (DDA).
In effect this has overruled the Secretary of State’s Guidance to the DDA definition of disabled, which must be considered by the courts and has been followed until now. The guidance states: “It is likely that an event will happen if it is more probable than not that it will happen.”
Vocal nodes
Mrs Boyle brought a claim for disability discrimination against her former employer, SCA Packaging. She suffered from vocal nodes which caused hoarseness. Having taken medical advice, she adopted a successful management regime to conserve her voice which included her regularly sipping water, not raising her voice and moving away from background noise.
She claimed the vocal nodes amounted to a disability on two grounds:
- under paragraph 6(1) of Schedule 1 of the DDA, that they were an impairment which would be likely to have a substantial adverse effect on her ability to carry out normal day-to-day activities but for the fact that measures, the management regime, were being taken to treat them
- under paragraph 2(2), that they were likely to recur, at which point they would have a substantial adverse effect on her ability to carry out normal day-to-day activities.
Easier test
The Northern Irish Industrial Tribunal held that Mrs Boyle was disabled. SCA unsuccessfully appealed to the Northern Ireland Court of Appeal (NICA) which then held that “likely” meant “could well happen”, an easier test than that found in the guidance. SCA again appealed.
The House of Lords dismissed SCA’s appeal and held that the NICA’s new definition was correct.
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