SCA Packaging Limited (Appellants) v Boyle (Respondent) (Northern Ireland)

For paragraph 6(1) of Schedule 1 to the Disability Discrimination Act 1995, an impairment is likely to have a substantial adverse effect if that effect could well happen without treatment or corrective measures. It need not be more probable than not. The inquiry assumes that the treatment is absent and the impairment is unchecked.

The statutory test protects people whose impairments are controlled by medication, therapy or a management regime. The decision overruled the contrary approach in Latchman v Reed Business Information Ltd. It also confirms that the statutory threshold of disability is distinct from the later question whether an employer was required to make adjustments.

The respondent, a former employee of the appellant, had previously suffered recurrent vocal-cord nodules and hoarseness. After surgery she followed a strict voice-management regime. She alleged disability discrimination, sex discrimination and unfair dismissal. The Industrial Tribunal determined, as a preliminary issue, that she was disabled under the Disability Discrimination Act 1995.

The employer appealed by case stated. The Northern Ireland Court of Appeal dismissed the appeal in [2008] NICA 48, holding that “likely” in paragraph 6(1) of Schedule 1 meant “could well happen”. The House considered whether that phrase instead required a probability, and whether the employee’s controlled condition met the statutory definition of disability.

1. The appeal was unanimously dismissed. Baroness Hale gave the leading analysis. Lords Hope, Rodger, Brown and Neuberger agreed that the Court of Appeal had adopted the correct test.
2. Paragraph 6(1) of Schedule 1 to the Disability Discrimination Act 1995 requires a counterfactual inquiry. The effects of treatment or correction are ignored. The question is whether the underlying impairment could well have a substantial adverse effect on normal day-to-day activities if those measures were not taken. It does not require proof, on the balance of probabilities, that the effect would occur.
3. Per Lord Rodger, the provision is directed to the level of risk that makes it worthwhile for a doctor or specialist to prescribe continuing treatment. Where treatment is being followed on medical advice, an employer may generally assume, absent an indication to the contrary, that the impairment is likely to recur without it and that a formerly substantial effect would again be substantial.
4. Baroness Hale distinguished paragraph 6(1), concerning an existing impairment whose effects are controlled, from paragraph 2(2), concerning effects which have ceased and may recur. A finding of disability is only a threshold. It does not decide whether reasonable adjustments were required under Part II.
5. The House overruled Latchman v Reed Business Information Ltd [2002] ICR 1453 and disapproved dicta applying the same probability test. The Tribunal’s finding that the nodules would recur if the regime ceased was open to it and, although reached by applying an unduly stringent test, stood. The respondent was therefore disabled during the relevant period.
6. The substantive discrimination complaints were remitted to the Industrial Tribunal. Lord Hope, with whom the other Law Lords substantially agreed, added obiter guidance that preliminary hearings should be used sparingly unless there is a short, potentially decisive point, and criticised the delay caused by the stated-case procedure.

• House of Lords: Appeal dismissed in [2009] UKHL 37 . The Court of Appeal’s construction of paragraph 6(1) was affirmed, and the substantive complaints were remitted.
• Court of Appeal in Northern Ireland: Dismissed the employer’s appeal by case stated in [2008] NICA 48. It held that “likely” meant “could well happen”.
• Industrial Tribunal: On a preliminary hearing, found that the respondent was a disabled person within the Disability Discrimination Act 1995. The substantive complaints had not been determined.