SCA Packaging Ltd v Boyle

The House of Lords considered the statutory definition of "disability" in the Disability Discrimination Act 1995, in particular Schedule 1 paragraphs 6(1) and 2(2). The court held that the word "likely" in those provisions does not mean "more likely than not" (the balance of probabilities) but a lower threshold best expressed as "could well happen" or a real possibility which cannot sensibly be ignored in the context. The court emphasised that paragraph 6(1) treats the effects of treatment or corrective measures as to be ignored when assessing whether an impairment would have a substantial adverse effect. The tribunal's factual finding that, absent her strict management regime, the vocal nodules would have recurred was open on the evidence and accordingly Mrs Boyle was a disabled person during the relevant period; the tribunal must now determine the substantive discrimination complaints. The court also criticised delay caused by the use of preliminary hearings and the stated case procedure in Northern Ireland.

This is an employment discrimination appeal concerning whether the respondent, Mrs Boyle, was a "disabled person" within the meaning of the Disability Discrimination Act 1995 in the period when she complained of discriminatory acts by her employer. The respondent had a history of vocal-cord nodules which, after surgery, were controlled by a strict management regime. The employer denied that she was disabled and the industrial tribunal held a preliminary hearing on disability. The tribunal found that, notwithstanding the absence of symptoms while she followed the regime, paragraph 6(1) of Schedule 1 required treating her as having the substantial adverse effects which would have occurred but for treatment; it also found recurrence likely under paragraph 2(2).

The nature of the claims and relief sought: Mrs Boyle had lodged multiple complaints under the Disability Discrimination Act 1995 (and related claims of sex discrimination and unfair dismissal) seeking remedies for alleged failure to make reasonable adjustments, harassment and victimisation arising between October 2000 and November 2002.

Issues framed by the court:

• whether the word "likely" in Schedule 1, paragraph 6(1) (and in paragraph 2(2)) means "more likely than not" or a lower threshold ("could well happen");
• whether paragraph 6(1) requires ignoring the effects of treatment or management regimes when assessing substantial adverse effects; and
• procedural propriety of holding a preliminary hearing on disability and the use of the stated case procedure in Northern Ireland.

Court’s reasoning: The House analysed the wording and purpose of Schedule 1 and concluded that Parliament intended a less exacting test than the balance of probabilities for predictive inquiries of this nature. Predictive medical questions often involve uncertainty and a pragmatic test focused on whether the adverse effect "could well happen" better serves the statutory scheme and the need for employers to know whether reasonable adjustments should be considered. The court therefore approved the Northern Ireland Court of Appeal's formulation and disapproved prior authority that had applied a balance of probabilities test. The tribunal's factual finding (that the nodules would have recurred if the management regime had ceased) was open on the evidence and so the respondent was properly treated as disabled for the relevant period; the substantive discrimination issues were remitted to the tribunal. The court also criticised procedural delay and the cumbersome stated case process and urged rule-makers in Northern Ireland to consider reforms.

Appeal dismissed. The House held that the word "likely" in Schedule 1, paragraphs 6(1) and 2(2) of the Disability Discrimination Act 1995 is to be understood in the sense of "could well happen" (a real possibility), not as requiring a finding that the event was more likely than not. On the facts the tribunal's finding that absent the management regime the vocal nodules would have recurred was open on the evidence and must stand; the case is remitted for determination of the substantive discrimination complaints. The House also criticised the delays arising from preliminary hearings and the stated case procedure in Northern Ireland.

Claim lodged at the Industrial Tribunal in Belfast 19 October 2001. The industrial tribunal conducted a preliminary hearing on disability and issued its decision on 23 May 2006. SCA requisitioned a case stated on 3 July 2006; a case stated was settled and issued in final form on 3 July 2007. The Court of Appeal (Northern Ireland) heard the matter on 8 February 2008 and delivered judgment dismissing the appeal on 9 October 2008 ([2008] NICA 48). The appeal to the House of Lords was heard and judgment given 1 July 2009 ([2009] UKHL 37).