Disabled Person : Boyle v SCA Packaging Ltd

Boyle v SCA Packaging Ltd (Equality and Human Rights Commission intervening): [2009] UKHL 37: 1 July 2009

HL(NI): Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury

The claimant, who commenced work with her employer in Northern Ireland in 1969, began to suffer from hoarseness in her voice. In 1975 she had an operation to remove nodules from her vocal chords but by 1981 they had grown back. In 1992 she had a second operation to remove them and thereafter was advised to undergo a strict management regime based on speaking quietly and resting her voice whenever possible. She sought to adhere to that regime and the nodules did not return.

In 2000 her employer proposed to remove a partition wall which separated her working environment from a larger office area. The employer rejected her claim that the increased noise levels, by requiring her to speak
in a louder voice, would have a substantial adverse effect on her health.

She commenced proceedings in the industrial tribunal complaining, inter alia, of discrimination contrary to the Disability Discrimination Act 1995.

The tribunal held a preliminary hearing to determine whether the claimant suffered from a physical impairment
which had a substantial and long term adverse effect on her ability to carry out normal day-to-day activities so as to bring her condition within the definition of disability in section 1(1) of the Act.

In 2006 the tribunal found that the adverse effect on the claimant when she suffered from the vocal nodules was substantial and that her prescribed management regime was medical treatment. It then
determined, for the purposes of paragraph 6(1) of Schedule 1 to the Act, that, since on the balance of probabilities if the claimant had stopped her management regime the nodules would have recurred, failure
to adhere to that treatment would have made it "likely" that she would have suffered substantial adverse effect, so that her impairment was to be treated as having that effect throughout the period complained of.

On the employer's appeal by way of case stated, the Court of Appeal in Northern Ireland, having held that "likely" in paragraph 6(1) was to be read as meaning "could well happen" rather than "probable", dismissed the appeal.

The employer appealed.

The House of Lords held:

Paragraph 6(1) of Schedule 1 to the Disability Discrimination Act 1995 required that the risk—that an impairment would cause substantial adverse effect unless measures were taken to treat or correct it—was
such as would make it worthwhile for a doctor to prescribe a continuing course of treatment to prevent it or for sensible precautions to be taken against it. It followed that the correct test was whether the adverse effect of the impairment "could well happen" unless the measures were taken. Accordingly, the claimant had been
disabled for the purposes of the Act during the requisite period and her claim would proceed to hearing.

The appeal was dismissed.