Landmark Case Widens Scope of Disability

Elizabeth Boyle has agreed settlement with her former employer, SCA Packaging Limited, for the sum of £125,000. The settlement was reached without admission of liability by the company, in respect of claims Ms Boyle had brought alleging discrimination on grounds of disability, sex, victimisation and unfair selection for redundancy.

The case has clarified the law, increasing protection from discrimination to people with a range of health conditions where symptoms can be managed or may fluctuate. This could include conditions such as diabetes, multiple sclerosis and epilepsy.

Elizabeth Boyle suffered from hoarseness and loss of voice caused by vocal nodules. She was employed by SCA Packaging Limited as a stock controller and had experienced difficulties with her vocal chords since 1974. Her condition required surgery, speech therapy and a strict management regime to ensure the problems did not recur. This involved limiting the use of her voice, staggering telephone calls, avoiding smokey, dry or dusty atmospheres, speaking quietly, reducing background noise, and maintaining high hydration levels.

At a time when Ms. Boyle was following her health management regime rigorously and was symptom free, her employer sought to remove a partition separating her office from a stock control room.

Ms Boyle believed that the increased noise levels would have a substantial adverse effect on her health and in October 2001 she began proceedings under the Disability Discrimination Act alleging discrimination on grounds of her employer’s failure to make reasonable adjustments for her disability.

Implications for Disability Discrimination law.

If a person is accepted as being a “disabled person” under the terms of the Disability Discrimination Act, their employer must in certain circumstances make “reasonable adjustments” for them.

The Act specifically includes protection for people suffering from conditions where the disabling impact is concealed from operation or public view so long as they are controlled by management regimes or medication. In addition, the legislation includes in its definition of disability circumstances where, even though an impairment has ceased to have a substantial adverse effect on a person, it is “likely to recur”.

The decision by the Court of Appeal, upheld by the House of Lords, centred on the meaning in this context of the phrase “likely”. Where it had previously been held to mean that the substantial adverse effect was “more probable than not”, this new interpretation now establishes that it should be read in the sense of “could well happen”.

Under the previous interpretation, an employer could possibly decide to take no steps to accommodate special measures being followed by the employee, unless the risk of recurrence of her condition could be shown to be more probable than not. This ruling means that it is sufficient to establish that, where a person’s treatment regime is disrupted, disabling effects could well recur. This would then carry with it a requirement of reasonable adjustment on the part of the employer.

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