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SCA Packaging Ltd v Boyle [2009] UKHL 37

Under the Disability Discrimination Act 1995 an impairment which is treated or corrected is counted (in law) as causing disability if it (in fact) would be likely to cause disability if untreated or uncorrected: "likely" here does not mean "probable" but means "could well happen". The employee was therefore disabled and the employer was under a duty to make reasonable adjustments.

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.  

Headnote

DISCRIMINATION — Disability — Impairment having substantial adverse effect — Whether “likely” to recur unless treatment continued — Whether test being“could well happen” — Disability Discrimination Act 1995, s 1(1), Sch 1, para 6(1)

Summary

When determining whether a person was disabled within the meaning of the Disability Discrimination Act 1995 by reason of having an impairment which, though capable of being controlled by measures taken to treat or control it, would be likely to have substantial adverse effects but for those measures, the word “likely” did not mean probable but “could well happen”. It followed that a woman whose propensity to develop vocal nodules was controlled by a strict management regime based on avoiding raising her voice, but which “could well” return and cause substantial adverse effects if that regime was not followed, was disabled for the purposes of the Act and her former employer, who had decided to place her in a noisier work environment despite her claim that it would require her to speak louder and so jeopardise her voice management regime, had to answer her claim that they had failed to make reasonable adjustments for her disability.

The House of Lords so held in dismissing an appeal by SCA Packaging Ltd against the decision of the Court of Appeal in Northern Ireland (Sir Brian Kerr LCJ, Higgins and Girvan LJJ) [2008] NICA 48B; [2009] IRLR 54 upholding a preliminary ruling of an industrial tribunal sitting at Belfast (Mrs O Murray) that the claimant, Mrs Elizabeth Boyle, was disabled.

By s 1 of the 1995 Act a person had a disability if a physical or mental impairment had a “substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”. By para 6(1) of Sch 1 to the Act an impairment which would be “likely” to have a substantial adverse effect but for treatment taken to control or correct it was to be treated as having that effect.

LORD RODGER OF EARLSFERRY said that Girvan LJ had held that “likely” in para 6(1) of Sch 1 did not mean “probable” but that “it could well happen”. His Lordship agreed. It referred to the kind of risk of an impairment recurring—“it could well happen”—that would make it worthwhile for a doctor to prescribe a continuing course of treatment to prevent it. Therefore, where someone was following a course of treatment on medical advice, in the absence of any indication to the contrary, an employer could assume that, without the treatment, the impairment was “likely” to recur.

BARONESS HALE OF RICHMOND, concurring, said that leave to appeal had been granted because the Court of Appeal in Northern Ireland had applied a different test from the one which had hitherto been applied in England and Wales. It was one of the functions of the House to ensure that United Kingdom statutes were interpreted in a uniform way. Latchman v Reed Business Information Ltd [2002] ICR 1453 had held that “likely” meant probable. But the Court of Appeal in Northern Ireland had applied the right test and Latchman would be overruled.

LORD HOPE, LORD BROWN and LORD NEUBERGER agreed.

Other

Boyle v SCA Packaging Ltd (Equality and Human Rights Commission intervening)

[2009] UKHL 37B; [2009] WLR (D) 222

HL(NI): Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury: 1 July 2009

Appearances: Noelle McGrenera QC and Paul Rodgers, both of the Northern Irish Bar, (instructed by J Blair Solicitors, Belfast) for SCA; Robin Allen QC and Catherine Casserley (instructed by Legal Enforcement Team, Equality and Human Rights Commission, Manchester) for the Equality and Human Rights Commission, intervening; the claimant did not address the House.

Reported by: C T Beresford, barrister

Notes

Section 1(1):

Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

Schedule 1 para 6(1):

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.

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