Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Employment lawEquality, diversity and inclusionDisability

Disability ruling makes claims more likely to succeed

by Personnel Today 15 Sep 2009
by Personnel Today 15 Sep 2009

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.

 

 

 

Personnel Today
Personnel Today

Personnel Today articles are written by an expert team of award-winning journalists who have been covering HR and L&D for many years. Some of our content is attributed to "Personnel Today" for a number of reasons, including: when numerous authors are associated with writing or editing a piece; or when the author is unknown (particularly for older articles).

previous post
Policy Clinic – Managing swine flu
next post
Q&A: Intra-company transfers

You may also like

Autistic surgeon wins disability discrimination claim

1 Dec 2023

Legal expert calls new holiday pay regulations ‘incoherent’

30 Nov 2023

Cruise giant accused of planning ‘fire and rehire’...

24 Nov 2023

Burges Salmon takes home 2023 Employment Law Firm...

21 Nov 2023

McDonald’s: How can employers prevent sexual harassment?

21 Nov 2023

Browne Jacobson takes home 2023 Equality, Diversity and...

21 Nov 2023

Entain and McLaren F1 are favourites in the...

21 Nov 2023

Two-thirds say periods have negative impact on work

20 Nov 2023

Tesco equal pay test cases to move to...

17 Nov 2023

Working class employees earn £6k less a year

17 Nov 2023

  • How to spot and tackle imposter syndrome in the workplace PROMOTED | Half of all UK adults...Read more
  • BetterMe for Business: How to Build Wellness Culture at Work PROMOTED | Ever encountered a...Read more
  • Global growth with simple HR compliance (webinar) WEBINAR | In an increasingly global marketplace...Read more
  • Talent acquisition: How AI can complement a ‘back to basics’ approach PROMOTED | Artificial intelligence is now...Read more
  • What will it mean to be an HR professional in 2024? (webinar) WEBINAR | As we approach 2024...Read more
  • HR Budget Planning for 2024: Preparing your People Strategy PROMOTED | As organisations continue to adapt...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2023

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2023 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+