House of Lords
Published July 6, 2009
Boyle v SCA Packaging Ltd, Equality and Human Rights Commission intervening
Before Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury
Speeches July, 1, 2009

In determining whether a person was disabled within the meaning of the Disability Discrimination Act 1975 by reason of having an impairment which, although capable of being controlled by measures taken to treat 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 her substantial adverse effects if that regime was not followed, was disabled for the purposes of the 1975 Act.

Accordingly, her former employers, who had placed 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, Lord Chief Justice of Northern Ireland, Lord Justice Higgins and Lord Justice Girvan) ([2009] IRLR 54) who had upheld a preliminary ruling of a Belfast industrial tribunal (Mrs O. Murray) that the claimant, Mrs Elizabeth Boyle, was disabled.

Mrs Boyle had brought proceedings under the 1975 Act claiming that SCA had failed to make reasonable adjustments, and additionally, after she had then been made redundant, victimisation and sex discrimination. SCA disputed that she was disabled.

Section 1 of the 1975 Act provided that 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".

Paragraph 6(1) of Schedule 1 provided that an impairment which would be “likely” to have a substantial adverse effect but for treatment taken to contol or correct it was to be treated as having that effect.

Ms Noelle McGrenera, QC and Mr Paul Rodgers, both of the Northern Irish Bar, for SCA; Mr Robin Allen, QC and Ms Catherine Casserley for the Equality and Human Rights Commission, intervening; Mrs Boyle declined an invitation to address the House..

LORD RODGER said that he agreed with Lord Justice Girvan in the Court of Appeal that “likely” in paragraph 6(1) did not mean “probable” but that “it could well happen”.

Doctors did not usually need to consider whether a patient’s condition would probably recur before prescribing a continuing course of treatment. Unless perhaps the side-effects were particularly unpleasant or the cost of the drug prohibitive, it would not be prescribed only where there was more than a 50 per cent chance of the condition recurring.

It would be prescribed if it was considered that there was a significant risk of that happening: when “it could well happen”.

Since paragraph 6(1) applied to people who were undergoing such a continuing course of treatment or its equivalent, it made sense to interpret “likely” against that background.

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.

And if the impairment had a substantial effect on the patient’s day-to-day life before it was treated, the employer could also assume, in the absence of any contra-indication, that, if it did recur, its effect would be substantial.

LADY HALE, concurring, said that the House had granted leave to appeal 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 and it was one of the functions of the House to ensure that United Kingdom statutes were interpreted in a uniform way.

English case law, as in Latchman v Reed Business Information Ltd ([2002] ICR 1453), had until now adopted the approach that an effect was not likely to recur if the risk of recurrence was about 50 per cent.

But who could say whether something was more than a 50/50 chance? By contrast, assessing whether something was a risk against which sensible precautions should be taken was an exercise carried out all the time.

The Court of Appeal in Northern Ireland had applied the right test. Latchman should be overruled.

Lord Hope, Lord Brown and Lord Neuberger agreed.

Solicitors: J. Blair Solicitors, Belfast; Mr Sarfraz Khan, Manchester.

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