Disability Discrimination – ‘Likey’ Means ‘Could Well Happen’

Employment disputes often arise because an employer does not consider that an employee’s condition is one that qualifies them for protection under the Disability Discrimination Act 1995 (DDA). It is therefore important that the definition of disability contained in the DDA is understood and interpreted in a consistent way.

For the purposes of the DDA, someone has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. If the impairment ceases to have such an effect, it is to be treated as still having that effect if it is likely to recur.

Furthermore, an impairment which would be likely to have a substantial adverse effect but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.

In SCA Packaging Ltd. v Boyle, the House of Lords has ruled that the word ‘likely’ should be taken to mean ‘could well happen’.

Mrs Boyle suffered from nodules on her vocal chords. She had undergone surgery to remove them and several months of speech therapy, after which she continued with a strict regime that involved voice exercises, resting her voice, sipping water and trying not to raise her voice. She attributed the non-recurrence of the nodules to her adherence to this regime of preventative measures.

In 2000, an office re-organisation was planned. Managers intended to remove a partition, which would expose Mrs Boyle to more noise and thus require her to speak more loudly. She argued that this was a failure to make reasonable adjustments for her disability. SCA Packaging Ltd. denied that she was disabled for the purposes of the DDA.

The House of Lords upheld the decision of the Court of Appeal that in determining whether an impairment would be ‘likely’ to have a substantial effect without the measures taken to treat or correct it, ‘likely’ means only ‘could well happen’. The more exacting test, whereby ‘likely’ was held to mean ‘more probable than not’, should no longer be used. It is sufficient to establish that the condition ‘could well recur’. Having established therefore that Mrs Boyle was disabled for the purposes of the DDA, the case was returned to the Employment Tribunal for hearing on its merits.

This decision clarifies the protection employers must afford to employees who suffer from a disability but who can carry on normal day-to-day activities because their condition is kept under control by medication or a prescribed course of treatment.

The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

© , October 2009

Please contact:

Emmanuelle Ries

DD +44 (0)20 7553 9938

View profile »