Meaning of the word “Likely” in the Disability Discrimination Act is clarified by the House of Lords

The House of Lords has given an important judgment on the interpretation of a significant aspect of the Disability Discrimination Act (DDA).

In the case of SCA Packaging Ltd v. Boyle, the House of Lords ruled that the word “likely” in the DDA simply refers to an outcome, or situation, that “could well happen.” In reaching this decision the House rejected the previous interpretation adopted by the English courts and tribunals that interpreted the word “likely” as meaning “more probable than not.” This may at first appear to be a small change, or just a purely academic point. However, the House of Lords ruling will make it easier for many people to assert that they are “disabled” under the terms of the DDA, and that they have a recurring condition that amounts to a disability. It also makes it easier for an individual to persuade an Employment Tribunal that they suffer from a condition that is likely to have a substantial adverse effect on them but for the fact that the person takes measures (such as specific medication or medical treatment) to treat or correct it.

The case was brought in the industrial tribunal in Northern Ireland, concerning the question of whether the individual was “disabled” under the DDA. Under section 1(1) of the DDA, a person is “disabled” if he or she has a “physical or mental impairment which has a substantial and long term adverse effect on his (or her) ability to carry out normal day-to-day activities.” The industrial tribunal that originally heard the case concluded that, but for the coping strategies that the individual adopted, her medical impairment (a problem with her vocal chords) was more likely than not to have continued to have a substantial adverse effect, and that on a balance of probabilities that the problems were likely to recur. The Northern Ireland Court of Appeal concluded that the proper approach to the question of whether a condition was “likely” to have a substantial effect without the adoption of the coping strategies was to ask if the substantial effect “could well happen” in the future.

The House of Lords has agreed with the approach adopted by the Northern Ireland Court of Appeal to the meaning of “likely,” confirming that it should be read as meaning “could well happen.” This decision is binding throughout the United Kingdom, and so while it arose out of a case commenced in Northern Ireland, the decision over-rules the English case law on the interpretation of the word “likely” within the DDA- which had adopted a higher degree of expectation than the term “could well happen.”

In the leading speech in the House of Lords, Baroness Hale stated that the word “likely” simply means that something is a real possibility, in so much as it “could well happen.” This did not mean that something is “more likely than not” to happen.

This interpretation presents a broader, less demanding test for individuals that may believe that they have a condition which constitutes a disability. In particular the case is very important when considering the appropriate treatment and rights of individuals that suffer from conditions that are generally well managed and controlled (so do not appear to the outside observer to amount to a disability).

Following this case it is now likely that an individual suffering from a medical condition which could, without treatment or coping strategies, have a “substantial adverse effect”  on them (where it may happen, but the probability of it happening is less than a 50 %) may be regarded as “disabled” under the terms of the DDA. In the decision given in the House of Lords, examples of Parkinsons Disease, diabetes, multiple sclerosis and epilepsy were given, s these are conditions which can be well managed with treatment, but which can have a substantial adverse on an individual without medication or treatment. The effect of this case could well extend to other conditions, including psychological conditions (such as stress-related depressions), and any condition to which an individual may have a congenital vulnerability or predisposition. Employers are frequently presented with employees that have recurring problems which may stay dormant for a long time, but when they recur cause “substantial adverse  effects” to the individual. While it may be said that the chances of there being substantial adverse effects may be less than 50%, the decision of the House of Lords will have the effect that for an individual that is able to argue that as the chances of the substantial adverse effects “could well happen” then he or she is, or remains, protected by the DDA.

Employers should review their policies and procedures relating to disability discrimination in light of this case, to ensure that they will be able to identify employees that will now be regarded as “disabled” as a consequence of this case. They should also ensure that managers are properly trained to be aware of the issues that this case highlights, so that they do not accidentally chose to ignore an employee that now clearly should be treated as being protected by the DDA as a consequence of the broader definition adopted by this case.

If you require any further advice o the effects and implications for you or your business as a result of this case, do not hesitate to contact us.