Added protection

Employers have a duty under disability discrimination laws toward employees whose health condition “could well happen” in the future, following a landmark House of Lords ruling.

SCA Packaging Ltd v Boyle  [2009] UKHL 37 (1 July 2009) concerned a woman with a propensity to develop nodules on her vocal cords, which she managed through a strict regime to conserve her voice. She claimed disability discrimination when her employer moved her to a noisier environment, where she had to raise her voice. Her employers disputed that she was “disabled”.

The Law Lords ruled in her favour. They extended the scope of the term “disability” by interpreting the word “likely” in para 6(1) of Sch 1 to the Disability Discrimination Act 1995 to mean “could well happen”, a wider test than “more likely than not”.

Delivering judgment, Lord Rodger said: “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’.”

Susie Uppal, director of legal enforcement at the Equality and Human Rights Commission, which intervened in the case, said it was important for “people [with] chronic medical conditions, such as epilepsy, rheumatoid arthritis or diabetes” to be recognised as disabled under the law.