SCA Packaging Limited v Boyle [2009] UKHL 37 HL

disability discrimination | definition of disability | meaning of "likely"

The House of Lords has held that the term "likely" in the context of conditions that are likely to recur or likely to have a substantial adverse effect but for treatment in paras.2(2) and 6(1) of sch.1 to the Disability Discrimination Act 1995 means "could well happen".

In order to bring a claim under the Disability Discrimination Act 1995, an individual must have a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. However, para.2(2) of sch.1 to the Disability Discrimination Act 1995 provides 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. Paragraph 6(1) states that an impairment that 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.

Mrs Boyle, who worked at SCA from 1969, suffered from nodes on her vocal cords. These were removed by surgery in 1975, but they had returned by 1981. Mrs Boyle had speech therapy and a second operation. She was ordered to undergo a strict vocal management regime (sipping water, trying not to raise her voice, resting her voice etc). The vocal nodes did not recur after 1992. Mrs Boyle had new line management from 2000 and it sought to have a partition removed that would mean that she was exposed to more noise and would require her to talk more loudly. She brought a claim in a Northern Ireland industrial tribunal for failure to make reasonable adjustments. She was made redundant in 2002 and brought a further claim of victimisation.

The industrial tribunal initially had to decide whether or not Mrs Boyle was disabled within the meaning of the Disability Discrimination Act 1995. It found that, but for Mrs Boyle's coping strategies, it was "more likely than not" that the substantial adverse effect caused by her condition would have continued. However, it also found that, on the balance of probabilities, the condition was likely to recur. The industrial tribunal's decision was upheld by the Northern Ireland Court of Appeal, albeit on the basis that it should have asked whether or not the substantial adverse effect "could well happen".

The House of Lords agreed with the Northern Ireland Court of Appeal's approach. In doing so, it overturned earlier case law stating that "likely" means "more probable than not" (Latchman v Reed Business Information Ltd [2002] ICR 1453 CA, applied in Swift v Chief Constable of Wiltshire Constabulary [2004] IRLR 540 EAT and Eastern and Coastal Kent Primary Care Trust v Grey [2009] IRLR 429 EAT). The "Guidance on matters to be taken into account in determining questions relating to the definition of disability" issued by the Northern Ireland Department of Economic Development was incorrect when it said that "it is likely that an event will happen if it is more probable than not that it will happen". The guidance confused the word "likely" with the word "probable". It is probable that an event will happen if it is more likely than not that it will do so. Probability denotes a degree of likelihood greater than 50%. Likelihood, on the other hand, is a much more variable concept. The aims of the Disability Discrimination Act 1995 would be better served by the use of this "broader and less exacting test".

Case transcript of SCA Packaging Limited v Boyle (on the UK Parliament website)

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