This case concerns the meaning of disability under the Disability Discrimination Act (DDA) and potentially widens the definition to make it easier for employees to argue they are covered. In this case, Ms Boyle suffered with hoarseness, which led to surgery for vocal cord nodules. Over the years the surgery had to be repeated several times and she was left with a long-term requirement for voice therapy.
In determining whether Boyle was disabled under the DDA, the tribunal considered the likelihood of the recurrence of hoarseness and voice nodules. It concluded that vocal nodules were “likely” to recur if Boyle did not follow her voice management regime, and found that she was disabled within the meaning of the DDA.
In considering whether Boyle was disables, the Court of Appeal focused on the meaning of “likely” under the DDA, which states that a person is to be considered disabled if they have physical or mental impairment that has substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The effect of impairment is long term if it is likely to last at least 12 months.
Even after impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities it is to be treated as continuing to have that effect if that effect is likely to recur.
The Court of Appeal said that as predicting medical outcomes is difficult, “likely” should, in the context of the DDA, mean “could well happen”. This is a significantly lowering of the hurdle for a claimant to overcome than the previous interpretation of “likely”, which was “ more probable than not”, and goes against longstanding guidance on the subject.
Key points:
This case makes is easier for an employee to show that they are disabled for the purposes of the DDA, since they only have to be able to show, for example, that their past condition “could well” recur.
This decision is not binding on English courts and tribunals, and employers on this side of the
Irish Sea will have to wait for an appellate decision for the position to be clarified with any certainty.
Whether or not an employee has been discriminated against still turns on whether the act complained of was causally linked to that disability, which may be less likely if the medical condition occurred in the past.