Boyle v. SCA Packaging Ltd.

Ms. Boyle brought a claim against her employer, SCA Packaging, under the Disability Discrimination Act 1995 (the 1995 Act).

Ms. Boyle had been employed by SCA Packaging as a buyer/stock controller since 1969. In 1974, she consulted an ENT specialist about constant hoarseness in her throat. She was diagnosed with nodules on her vocal cords. In the next year she had an operation to remove the nodules; however, she began suffering from them again in 1981. On the advice of a surgeon, she underwent rigorous speech therapy, after which her ailment began to disappear. Nonetheless, the nodules reappeared in December 1991. This time, the Respondent was advised to follow a strict “management regime” to conserve her voice. This included sipping water throughout the day, reducing the length of telephone conversations, and trying not to shout. However, the nodes remained. In 1992, she had another operation to remove them, after which she rested her voice completely for four months and carefully followed the management regime, which had a harsh and distressing effect upon her life. The nodules did not recur after 1992 and she resumed work with SCA.

SCA considered that her ailment had been cured, although Ms. Boyle attributed the absence of nodules to her adherence to her management regime. In September 2000, SCA decided to remove the wall separating Ms. Boyle’s office and the stock control room. Ms. Boyle felt that as this would increase noise levels around her, it would have an adverse effect on her health. The SCA refused to comply with her request to keep the barrier, and instead told her that by 2002 her post would cease to exist. Later that year, she was made redundant. Ms. Boyle brought proceedings against her employer under the 1995 Act.

Section 1(1) of the 1995 Act provided that a person had a disability for the purposes of the Act if she had a physical or mental impairment which had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. Paragraph 6(1) of Sch. 1 to the 1995 Act provided that a disability also included 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 Northern Ireland Department of Economic Development (the Department) had issued guidelines suggesting that “likely” meant “more probable than not.”

Whether or not Ms. Boyle had a disability was a threshold question which needed to be determined before the case could proceed to the merits. The Industrial Tribunal in Northern Ireland decided this question in Ms. Boyle’s favour. It did so on the basis of the Department’s definition of “likely.” SCA appealed against the decision in the Court of Appeal, which again decided in the favour of Ms. Boyle and widened the definition of “likely” to “could well happen.” SCA appealed to the House of Lords.

The Court found that the Respondent did fall under the category of disabled persons as given in the 1995 Act and held that on its true construction, the word “likely” in the phrase “likely to have a substantial adverse effect” in the 1995 Act meant “could well happen,” rather than “more probable than not.”

There were several reasons why the Court adopted this definition. First, it was difficult to predict medical outcomes, and while it would be relatively straightforward for an employer to assess whether serious adverse consequences “could well happen” if treatment were stopped, it was more difficult to assess whether or not there was a 50+% chance that such consequences would occur. Additionally, whether or not a doctor would consider a treatment necessary to prevent recurrence of a condition would be based on judgments closer to whether or not it “could well” recur, rather than a strict assessment of whether or not it was more probable than not. Finally, the Court did not want to sanction an approach that would allow an employer to completely ignore a serious risk merely because the probability of it occurring would be less than 50%.

As such, the appeal was dismissed, and the case was remitted back to the lower courts for hearings on the merits.

“I would prefer to place the emphasis a little differently. In their everyday practice doctors do not usually need to consider whether a patient's condition would ‘probably’ recur if he did not continue to take some drug or follow a particular exercise or other treatment regime. On the one hand, a doctor does not prescribe a continuing course of treatment if it is unnecessary—in other words, where she considers that the condition or its symptoms will not recur if the patient stops the treatment. But, equally, unless perhaps the side-effects are particularly unpleasant or the cost of the drug is prohibitive, a doctor does not prescribe a continuing course of drug or other treatment only where she considers that there is more than a 50% chance of the condition or symptoms recurring. She does so when she considers that there is a significant risk of that happening—when ‘it could well happen’, to use Girvan LJ's phrase, and when, accordingly, it is worthwhile to continue the treatment. … Paragraph 6(1) applies to people who are undergoing such a continuing course of treatment or its equivalent. So it makes sense to interpret ‘likely’ against that background.” Para. 41-42.

“It has often been emphasised in the cases that the burden of proving disability rests with the applicant, who must bring medical evidence to establish this. Witnesses from any branch of medicine (including the professions related to medicine such as speech therapy) will be far more comfortable with assessing the reality of the risk rather than putting precise percentages upon it.” Para. 70.