Boyle v SCA Packaging Ltd 2009


This House of Lords decision discusses the meaning of disability, particularly in relation to paragraph 6(1) of Schedule 1 of the Disability Discrimination Act 1995.


Ms Elizabeth Boyle had a chronic problem with hoarseness due to nodules on her vocal cords which necessitated an operation to remove them in 1975.

The nodules returned in 1981 and in 1992 she was ordered to undergo a strict management regime (sipping water, trying not to raise her voice, resting her voice, exercising, etc). The nodules did not go away and so she had a second operation to remove them.

After that she continued the same management regime, with the aim of preventing the nodules from recurring. They did not come back and neither did her hoarseness.

She was employed by SCA Packaging Ltd (SCA) and between October 2001 and November 2002 she lodged three complaints of discrimination, contrary to the Disability Discrimination Act 1995 with the industrial tribunal in Belfast. Those complaints proceeded on the basis that she was a disabled person, by reason of the problem with her voice. She also alleged sex discrimination.

Her original disability discrimination complaint related to the threatened removal of a partition separating her working place from a larger, noisier area; the second related to Ms Boyle being told, in about February 2002, that her particular post would not in future exist; the third related to alleged victimisation in May 2002 when she was made redundant.

Although since her operation in 1992, the nodes and the hoarseness had not returned, Ms Boyle attributed this to the fact that she had continued to follow her management regime. If she had stopped that regime, she said, the nodules and her hoarseness would have been likely to come back.

This regime would have been affected if she were forced to work in a noisier environment. SCA should therefore have considered reasonable adjustments.

SCA contended that the problem of the nodules and resulting hoarseness had been cured by the operation in 1992. So, stopping the management regime would not have brought back the impairment.

Ms Boyle took the case to an industrial tribunal who found in her favour.  SCA appealed to the Court of Appeal [SCA Packaging Ltd v Boyle [2008] NICA 48 (09 October 2008)] who discussed the meaning of "likely" when considering the likelihood of Ms Boyle's nodes returning if she were she moved to a noisier environment:

"18. What is meant by the words "likely to have a substantial adverse effect" is not entirely clear. The word "likely" may mean probable but the dictionary definition includes "such as might well happen". The meaning to be given to the word when it is used in a statute will depend upon the statutory context. ......

...Having regard to the intention of the Civil Procedure Rules a high test requiring proof on a balance of probabilities would be both undesirable and unnecessary. The word 'likely' connoted a rather higher threshold than 'more than fanciful' but a prospect could be more than merely fanciful without reaching the threshold of more probable than not. In Transport Ministry v Simmons [1973] 1 NZLR 359 at 363 McMullin J said:

"An event which is likely may be an event which is probable but it may also be an event which while not probable could well happen. But it must be more than a mere possibility."

19. The prediction of medical outcomes is something which is frequently difficult. There are many quiescent conditions which are subject to medical treatment or drug regimes and which can give rise to serious consequences if the treatment or the drugs are stopped. These serious consequences may not inevitably happen and in any given case it may be impossible to say whether it is more probable than not that this will occur. This being so, it seems highly likely that in the context of paragraph 6(1) in the disability legislation the word "likely" is used in the sense of "could well happen".

The court dismissed the appeal. SCA appealed to the House of Lords, arguing that the court was incorrect and that a tribunal had to be satisfied, on the balance of probabilities, that the substantial adverse effect would happen.

The Judgement

The definition of "disability" as laid down in section 1(1) of the Disability Discrimination Act 1995 is that:

"Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."

Paragraph 6(1) of Schedule 1 to the 1995 Act provides:

"An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect."

The Lords agreed with the Court of Appeal and found that the word "likely" in para 6(1) of Schedule 1 is used in the sense of "could well happen". SCA's appeal was dismissed.

"3. The case is also important for people who, like Mrs Boyle, are in need of the protection of para 6(1) of Schedule 1. They include those suffering from conditions such as diabetes or epilepsy whose disability is concealed from public view so long as it is controlled by medication.

Their disability is insidious. The measures that are taken to treat or correct it, so long as they are effective, enable them to carry on normal day-to-day activities just like everyone else. But the disability is there nevertheless. It lives with them all the time, as does the awareness that the measures that are taken to treat or correct it may not be wholly effective.

Doctors do what they can to prescribe appropriate medication, bearing in mind the likely risk of side effects as well as its effectiveness. But it does not always work, and the precautions that people have to take against that eventuality may in themselves be disabling in a way that is often misunderstood: refraining from driving or operating heavy machinery, for example.

In Mrs Boyle's case the management regime which enabled her to live with her voice dysfunction without having further therapy but which an employer might find inconvenient or even irritating was of that character.

4. Para 6 strikes a fine balance between the need to protect those who are in that position and those whose underlying condition does not meet the general test that section 1(1) lays down.

The general test will be satisfied if the impairment would be "likely" to be substantial but for the fact that measures to treat or correct it are being undertaken. It directs attention to the extent of the impairment that would result, not to how it ought to be treated. But the fact that measures are being taken to treat or correct it, too, is the product of an assessment of what is "likely".

Sometimes predictions of this kind are expressed in percentage terms for the guidance of patients by physicians and pharmacists. But decisions as to whether measures should or should not be taken are rarely expressed in this way. Choices may have to be made in situations where it is quite difficult to predict what will happen with any degree of accuracy.

In this context asking the question whether it is more probable than not is inappropriate. I agree with my noble and learned friends that the purposes of the Act are best served by adopting the broader and less exacting test as to what is "likely"..."

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