17 August 2010
For the purposes of the Disability Discrimination Act 1995 (DDA), someone has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. If the impairment ceases to have such an effect, it is to be treated as still having that effect if it is likely to recur.
Furthermore, an impairment which would be likely to have a substantial adverse effect but for the fact that measures are being taken to treat or correct it is to be treated as having that effect.
In SCA Packaging Ltd. v Boyle, one of the claims Mrs Boyle brought against her employer was that she had suffered disability discrimination because SCA Packaging had failed to make reasonable adjustments to take account of her throat condition. She had undergone surgery to remove nodules from her vocal chords and several months of speech therapy, after which she continued with a strict regime that involved voice exercises, resting her voice, sipping water and trying not to raise her voice. She attributed the non-recurrence of the nodules to her adherence to this regime of preventative measures. She argued that a planned removal of office screens would require her to speak more loudly, but SCA Packaging denied that she was disabled for the purposes of the DDA.
The House of Lords ruled that in determining whether an impairment would be likely to have a substantial effect without the measures taken to treat or correct it, 'likely' means only 'could well happen'. The more exacting test, whereby 'likely' was held to mean 'more probable than not', should no longer be used. It is sufficient to establish that the condition 'could well recur'.
Having established that Mrs Boyle was disabled for the purposes of the DDA, the case was returned to the Employment Tribunal for hearing on its merits. However, it has recently been announced that Mrs Boyle has agreed to settle this and her other claims of sex discrimination, victimisation and unfair selection for redundancy for £125,000. The settlement was agreed without admission of liability on the part of SCA Packaging Ltd.
Contact partner and practice group leader, Jo Davis, for advice on any discrimination law matter on 01753 279029, complete the online enquiry form or email employmentlaw@bpcollins.co.uk. |
