Disability Discrimination Threshold Lowered

2nd July 2009

Yesterday, the House of Lords handed down an important decision in the case of SCA Packaging v Boyle.

In light of this decision it appears that the word ‘likely’ as used in the Disability Discrimination Act 1995 should be interpreted as meaning ‘could well happen’, rather than the previous threshold of ‘more likely than not’.

The Court had to decide whether an illness (hoarseness caused by nodes on the vocal chords) qualified as a disability within the meaning of the DDA 1995. Pursuant to Paragraph 6(1) of Schedule 1 to the Act “an impairment which would be likely to have a substantial adverse effect on the ability of a person concerned to carry out normal day-to-day activities, but for the fact that measures are being take to treat or correct it, is to be treated as having that effect”.

Therefore, in order to determine whether the illness qualified as a disability the Court had to consider meaning of the word ‘likely’ in two contexts:

(i) the likelihood of a substantial adverse effect if the corrective measures were not taken; and
(ii) the likelihood of a recurrence of that effect at some point in the future.

In its decision, the House of Lords rejected previous authority that ‘likely’ in the context of the DDA 1995 meant “more likely than not” or a 51% chance, taking the view that “could well happen” was a more appropriate test.

In light of this decision, the courts will now apply the lower “could well happen” threshold when considering whether an illness qualifies as a disability within the meaning of the DDA 1995, which is likely to increase the number of people able to establish claims of disability discrimination.