House of Lords lowers Disability Discrimination Act 1995 “hurdles” for potential claimants with recurring disabilities

3 July 2009

Summary
In the case of SCA Packaging Limited v Boyle [2009] UKHL 37, the House of Lords has provided an interpretation over the much debated meaning of the word “likely”, as used in paragraphs 6(1) and 2(2) of Schedule 1 to the Disability Discrimination Act 1995 (“the Act”). The Lords decided that “likely” was something that meant it “could well happen”. They rejected the interpretation that “likely” meant “more probable than not”, as decided in previous cases.

Facts
SCA Packaging Ltd (“SCA”) employed Ms Boyle who experienced a chronic problem with hoarseness due to nodules on her vocal cords. An operation to remove them in 1975 led the nodules to return and a further operation was needed. Her consultant also recommended she remove herself from background noise. In 2000, SCA removed a partition separating Ms Boyle's office from a noisier area and she brought a claim of disability discrimination, claiming that her employer had failed to make reasonable adjustments for her condition.

What had to be decided for her to bring a successful claim was whether Ms Boyle was a “disabled person” within the meaning of the Act. Schedule 1 (2) (2) states in relation to Ms Boyles case that:

“…..Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.”

SCA denied that Ms Boyle was disabled because the second operation she had had to remove the nodules, had cured her condition. Ms Boyle denied this and stated that her condition was likely to recur and that she had been prescribed treatment after the second operation. Ms Boyle stated that if the underlying condition fluctuates in the severity of its effects, the fact that the symptoms are not currently substantial does not matter if they are likely to become so again in the future. The SCA appealed when the lower tribunals agreed with Ms Boyle’s interpretation of the law. In the company’s view the word "likely" was "probable" or “more likely than not”.

The issue before the Lords was the degree of likelihood entailed in each of the provisions of the Act relating to the likelihood of a substantial adverse effect if the treatment or corrective measures were not taken or the likelihood of a recurrence of that effect at some time in the future. Did “likely” in the Act’s provisions mean probable or “more likely than not” or did it mean simply that it is a real possibility, something which “could well” happen?

Judgment
The Lords stated that doctors did not prescribe continuing courses of treatment if it was unnecessary and in fact, would only prescribe when there was a significant risk of a condition recurring. Schedule 1 para 6(1) of the Act applied to people who were undergoing such continuing treatment, therefore, the Lords would interpret "likely" against that background.

The judgment also stated that where “….someone is following a course of treatment on medical advice, in the absence of any indication to the contrary, an employer can assume that, without the treatment, the impairment is “likely” to recur.” If the impairment had a substantial effect on Ms Boyle’s daily activities before it was treated, the employer could also assume that if it recurred, its effect would be substantial and the person disabled.

Comments
In stating that the proper test as to whether a claimant's medical condition was "likely" to have a substantial adverse effect if medical treatment ceased was whether "it could well happen", the Lords have lowered the hurdle for a claimant to overcome in establishing they have a “disability” under the Act.

Although this was a Northern Irish case, the law is substantially the same as in England and Wales and so the case will be of use in deciding whether a claimant in those jurisdictions is disabled or not.