A likely story

SCA Packaging Ltd v Boyle

The 1995 Disability Discrimination Act (DDA) protects a disabled person whose condition has been successfully treated, if an adverse effect is “likely” to recur if the corrective treatment had not been applied. In SCA Packaging Ltd v Boyle, the House of Lords said that the word “'likely” should be interpreted as meaning “could well happen” rather than “more likely than not”.

Basic facts

Mrs Boyle had worked for SCA Packaging since 1969. In the early 1970s, she started suffering with hoarseness due to the growth of nodules on her vocal chords and in 1975 had an operation to remove them. The nodules grew again in 1981 and 1992, after which she followed a strict regime to ensure there was no recurrence.

In September 2000 Mrs Boyle’s employer threatened to take down a partition separating her office from the stock control room. She complained that the increased noise levels would have a substantial adverse effect on her health. In October 2001 she lodged a claim under the DDA (among other things) that the company had failed to make reasonable adjustments for her.

Relevant law

Section 1(1) defines a disability as a “physical or mental impairment which has a substantial and long term adverse impact on [a person’s] ability to carry out normal day to day activities”.

Paragraph 6(1) of Schedule 1 states that impairments that do not have a substantial adverse effect on normal day to day activities because of corrective treatment are still covered, if the effects are “likely” to recur if the treatment ended.

Paragraph 2(2) states if an impairment ceases to have a substantial adverse effect it is still “to be treated as continuing to have that effect if that effect is likely to recur”.

Tribunal and Court of Appeal decisions

The tribunal agreed that Mrs Boyle suffered from a physical impairment and had she not adopted different coping strategies, it was “more likely than not” that the substantial adverse effect of the impairment would have continued. It also decided, on the balance of probabilities, that if she had stopped the management regime, the vocal cord nodules would have recurred and would have had a substantial adverse effect on her ability to speak.

On appeal, the Northern Ireland Court of Appeal upheld the tribunal's finding on disability but held that in addressing the degree of likelihood required under the DDA, it should have asked whether the substantial adverse effect “could well happen”.

House of Lords decision

The House of Lords upheld the decision of the Court of Appeal, deciding that the word “likely” in paragraphs 6(1) and 2(2) of Schedule 1 must be used in the sense of something that “could well happen” or something that was a “real possibility”.

Their Lordships said there were very good reasons for concluding that Parliament did not intend that “likely” should mean “more likely than not" in the context of making predictions about what may happen in the future, as opposed to deciding “on the balance of probabilities" whether something has happened in the past.

It pointed out that “predictions are very different from findings of past fact. It is not a question of weighing the evidence and deciding whom to believe. It is a question of taking a large number of different predictive factors into account … Who can say whether something is more than a 50/50 chance? … But assessing whether something is a risk against which sensible precautions should be taken is an exercise we carry out all the time”.

The House of Lords also criticised the guidance for tribunals produced by the Government which it said had confused the meaning of the word “likely” with that of the word “probable”. “Probability denotes a degree of likelihood greater than 50%. Likelihood, on the other hand, is a much more variable concept”.