Redefining 'likely' for disability discrimination solicitors

JUNE 2009

Disability discrimination solicitors were presented with a lower threshold for the definition of a disability following an appeal considered by the House of Lords in 2009, based on the meaning of the word "likely".

The case, SCA Packaging Limited (Appellants) v Boyle (Respondent) (Northern Ireland), concerned an employment tribunal claim brought by a woman who was suffering from vocal fold nodules, and was successfully treating this condition with a voice management regime; the central question to the appeal was whether this fell within the definition of disability in the Disability Discrimination Act 1995 (the Act).

The Act states, in Paragraph 1(1), 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 adverse effect on his ability to carry out normal day-to-day activities". Under Paragraph 6(1) of the Act and Paragraph 2(2) of Schedule 1, disabilities that cease to affect substantially the person's day-to-day activities through treatment or other reasons are still to be considered disabilities if adverse effects are likely to recur, either spontaneously or if the treatment were to be stopped.

The defence's argument that the use of 'likely' implied a 51% chance was dismissed by the Lords, as it had been by the Employment Appeal Tribunal in 2008. The EAT's decision that "'likely' was used in the sense of 'could well happen' rather than probable or more likely than not" was upheld by Baroness Hale of Richmond in her concluding remarks in the House of Lords.

For businesses, this new definition of 'likely' means that greater care must be exercised when dealing with workers, as a lower threshold may mean more disability discrimination claims are to be brought against employers. It would, therefore, be advisable for any firm that employs staff that it knows to have a controlled or recurrent disability under the Act to consult with specialist employment lawyers over procedures for compliance with discrimination law.

Manchester discrimination solicitors
JMW Solicitors' Employment Law department, led by partner Lindsey Bell, has a strong record of acting on behalf of employers in discrimination claims, and in providing advice that allows firms to meet their obligations under relevant legislation.

Chambers and Partners 2009 praised Lindsey Bell as a solicitor who "explains the law in a clear and understandable way and is extremely efficient." Her department's understanding of business needs contributes to a highly effective service for client firms in various sectors of industry.

For further information about the ways in which JMW's recruitment lawyers can assist with your business' needs, please contact:

Lindsey Bell - Head of Employment Law

0845 872 6666 or by email at: lindsey.bell@jmw.co.uk
Click here to view Lindsey's areas of expertise.

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