Judgments - SCA Packaging Limited (Appellants) v Boyle (Respondent) (Northern Ireland)

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24.  Sadly, Schedule 1 to the 1995 Act is not a model of clear drafting. Happily, in Goodwin v Patent Office [1999] ICR 302, 000, paras 25-30, giving the judgment of the Employment Appeal Tribunal, Morison P unscrambled it by identifying the four questions which have to be answered and the order in which - despite the order of the paragraphs in the Schedule - they are usually best considered. I take each of them in turn.

25.  Undoubtedly, at one time Ms Boyle had a physical impairment (section 1(1)) of her vocal cords which caused hoarseness. It affected her ability to speak and so, in terms of para 4(1)(f), it affected her ability to carry out normal day-to-day activities. Whether the effect of an impairment is “substantial” (section 1(1)) is not, of course, ultimately a purely medical or scientific question: it involves a wider assessment of the effects of the impairment on the person’s everyday life. In Ms Boyle’s case the tribunal found that the effect of her impairment was indeed substantial.

26.  But, since the operation to remove the nodules from her vocal cords in 1992, the nodes and the hoarseness have not returned. That was accordingly the position during the relevant period between October 2000 and November 2002. Ms Boyle, for her part, attributed this to the fact that, ever since the operation, she had continued to follow the strict management regime. If she had stopped that regime, she said, the nodules and her hoarseness would have been likely to come back. By contrast, SCA contended that, actually, the problem of the nodules and resulting hoarseness had been cured by the operation in 1992. So, stopping the management regime would not have brought back the impairment.

27.  Paragraph 6(1) of Schedule 1 to the 1995 Act provides:

“An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.”

It is important to recognise just how far-reaching this provision is. Where it is “likely” that an impairment would have a substantial adverse effect on the person’s normal day-to-day activities, but for the measures by way of treatment or correction, then the impairment is to be treated as having that substantial effect. In other words, you ignore the individual’s actual situation with the benefit of the course of treatment and consider her as if she was not having the treatment and the impairment was completely unchecked.

28.  This is plain on the wording of para 6(1), but, if there were any doubt about the way that the provision was meant to operate, the Guidance on matters to be taken into account in determining questions relating to the definition of disability (1996) issued by the Northern Ireland Department of Economic Development, removes that doubt. The relevant guidance, which was of the kind envisaged by section 3(2)(a) of the 1995 Act, referred to para 6(1). The Guidance said, at paras A12 and 13:

“A12. This applies even if the measures result in the effects being completely under control or not at all apparent.

A13. For example, if a person with a hearing impairment wears a hearing aid the question whether his or her impairment has a substantial adverse effect is to be decided by reference to what the hearing level would be without the hearing aid. And in the case of someone with diabetes, whether or not the effect is substantial should be decided by reference to what the condition would be if he or she was not taking medication.”

A more elaborate version of the same guidance is to be found in paras B12 and 13 of the Guidance issued in 2008. It is, of course, precisely because para 6(1) has this far-reaching effect that it does not apply “in relation to the impairment of a person’s sight, to the extent that the impairment is, in his case, correctable by spectacles or contact lenses or in such other ways as may be prescribed": para 6(3).

29.  The effect of the provision was described succinctly by Simon Brown LJ in Woodrup v London Borough of Southwark [2003] IRLR 111, 112, at para 4. Referring to para 6(1), he said:

“As will readily be seen, it provides (perhaps rather surprisingly) that someone is to be treated as disabled even though they are not in fact disabled (even, that is, where they suffer no substantial adverse effect on their ability to carry out normal day-to-day activities) if, without the medical treatment they are in fact receiving, they would suffer that disability. One asks the question whether, if treatment were stopped at the relevant date, would the person then, notwithstanding such benefit as had been obtained from prior treatment, have an impairment which would have the relevant adverse effect?”

His Lordship subsequently referred, at p 114, para 13, to “this peculiarly benign doctrine". Paragraph 6(1) may, however, be intended to reflect the fact that, basically, the individual concerned suffers from the impairment and, as a general rule, cannot be forced to continue any course of treatment or correction.

30.  Assume therefore that, in this case, during the relevant period the management regime had the effect of eliminating any vocal nodules so that Ms Boyle could speak and communicate satisfactorily. Assume also that, but for the management regime, the nodules would have recurred and would have caused her substantial difficulty in communicating. Then, by virtue of para 6(1), during the relevant period Ms Boyle would have had to be treated as if she actually had the nodules on her vocal cords and therefore actually had substantial difficulty in communicating. In other words, on that assumption, she would have had to be treated as someone who was disabled because she had substantial difficulty in communicating - not as someone who was disabled because, although she could communicate satisfactorily, she had to follow a management regime in order to prevent her former substantial difficulty in communicating from recurring.

31.  That is a description of the hypothetical situation if para 6(1) applies to Ms Boyle’s case. The tribunal had to determine whether it actually did apply during the relevant period. The relevant evidence established that, before the operation in 1992 Ms Boyle had undoubtedly suffered an impairment to her vocal cords. The tribunal therefore had to decide whether, as she said, during the relevant period, this physical impairment would have been “likely” to have a substantial adverse effect on her ability to speak and communicate if she had not been treating it by continuing to follow the management regime. If so, then, during the relevant period, the impairment was to be treated as having a substantial adverse effect on her ability to speak and communicate - even if, in fact, she could communicate satisfactorily, thanks to her management regime.

32.  As Mr Allen emphasised, this was the crucial issue in the case since, if it was resolved in Ms Boyle’s favour, there could be no doubt that the impairment had lasted for more than 12 months and so was “long term": section 1(1) and para 2(1)(a) of Schedule 1. So Ms Boyle would meet all the criteria for being regarded as a “disabled person", by reason of the substantial-long term adverse effect on her ability to speak and communicate which was present, even if neutralised by the management regime, during the relevant period. The substantive provisions in Part II of the Act would therefore apply to her on that basis.

33.  It would, however, be wrong to consider the issue exclusively, or even mainly, in a forensic setting. Its true practical setting is SCA’s business. When Ms Boyle claimed to be a “disabled person” during the relevant period, SCA, as her employers, had to consider whether she was indeed such a person as defined in section 1 and Schedule 1. More particularly, they had to consider whether, if she stopped the management regime, the nodules on her vocal cords would be “likely” to return and have a substantial adverse effect on her ability to speak. If so, as already explained, Ms Boyle was a “disabled person” for the purposes of the 1995 Act and SCA had then to consider what, if anything, the provisions in Part II required them to do with regard to her as a person suffering from a physical impairment which was having a substantial adverse effect on the way she could speak and communicate.

34.  The industrial tribunal resolved the dispute about her disability in Ms Boyle’s favour. The tribunal found on the balance of probabilities that, if she had stopped the management regime during the relevant period, the vocal cord nodules would have recurred - and, as before, would have had a substantial adverse effect on her ability to speak.

35.  SCA appealed to the Court of Appeal. At the hearing of the appeal there was no discussion of the meaning of “likely” in para 6(1). Despite this, when giving the judgment of the court dismissing the appeal, Girvan LJ held, at para 19, that it does not mean “probable", but “[it] could well happen". SCA appeal to this House. Their contention is that Girvan LJ was wrong and that, as held in the rather sparse previous case law, the tribunal had to be satisfied, on the balance of probabilities, that the substantial adverse effect would happen. I respectfully agree with Girvan LJ’s interpretation.

36.  "As with most ordinary English words ‘likely’ has several different shades of meaning. Its meaning depends upon the context in which it is being used": Cream Holdings Ltd v Banerjee [2005] 1 AC 253, 259, para 12, per Lord Nicholls of Birkenhead. The previous cases cited by the appellants do not really help in identifying the meaning of “likely” in the present context since they contain no substantial reasoning in support of the interpretation which they favour. The Guidance issued by the Northern Ireland Department of Economic Development supported the approach in the case law - indeed the equivalent British guidance had been cited in support of that approach in some of the cases. At para B7, the Northern Irish Guidance said: “It is likely that an event will happen if it is more probable than not that it will happen.” But, again, there is no reasoning and, in any event, while the Guidance can helpfully illustrate the way that a provision may work in practice, it cannot be regarded as an authority on a point of statutory interpretation. I would therefore put it on one side.

37.  Nor, on the other hand, would I base my interpretation, as Mr Allen argued, on the supposed difficulty for doctors in determining the issue in para 6(1) on the balance of probabilities.

38.  For one thing, as already pointed out, the ultimate question is not purely medical, even though the medical input into any answer is likely to be significant. As in most legal proceedings, the decision is for the tribunal - and tribunals, like courts, are accustomed to using the available medical evidence to draw conclusions on the balance of probabilities when that is required.

39.  In practice, doctors commonly give evidence in cases where the aetiology of some condition is contested - for example, whether a claimant’s back pain was caused by an accident at work or by him slipping when playing football a week later. Quite frequently, a medical expert will be prepared to say that, for various reasons, the accident at work, rather than the football incident, was probably the cause of the pain - or the reverse.

40.  Even when they are asked to look into the future, doctors may well be able to do so with considerable confidence. Take the example of someone who is suffering from a progressive condition such as a cancer. For the purposes of para 8(1) of Schedule 1 to the 1995 Act (“the condition is likely to result in his having such an impairment”), it may be all too easy for a doctor to say that, on the balance of probabilities, the patient will, sooner or later, have an impairment which has a substantial effect on his ability to carry out normal day-to-day activities. Indeed the chances may be, say, 90% or more. Similarly, the way that most drugs work - say, by facilitating a normal blood flow to the affected areas - is known. So where, for instance, a particular patient, with a known history, is prescribed a continuing course of drug treatment after a heart attack or a minor stroke, a doctor may be able to say, pretty confidently, that, if the treatment were stopped, that patient would probably have another heart attack or stroke. In short, for doctors called to give evidence in relation to an issue under para 6(1) the difficulty of predicting the effect of stopping a treatment, on the balance of probabilities, will vary from case to case. In itself, therefore, the possible difficulty of doing so in some cases is not a compelling reason to interpret “likely” as meaning something less than “probable” in order to make the provision workable.

41.  I would prefer to place the emphasis a little differently. In their everyday practice doctors do not usually need to consider whether a patient’s condition would “probably” recur if he did not continue to take some drug or follow a particular exercise or other treatment regime. On the one hand, a doctor does not prescribe a continuing course of treatment if it is unnecessary - in other words, where she considers that the condition or its symptoms will not recur if the patient stops the treatment. But, equally, unless perhaps the side-effects are particularly unpleasant or the cost of the drug is prohibitive, 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", to use Girvan LJ’s phrase, and when, accordingly, it is worthwhile to continue the treatment.

42.  Paragraph 6(1) applies to people who are undergoing such a continuing course of treatment or its equivalent. So it makes sense to interpret “likely” against that background. I would accordingly hold that it refers to the kind of risk of an impairment recurring (“it could well happen”) that would make it worthwhile for a doctor or other specialist to prescribe a continuing course of treatment to prevent it. Therefore, where someone is following a course of treatment on medical advice, in the absence of any indication to the contrary, an employer can assume that, without the treatment, the impairment is “likely” to recur. If the impairment had a substantial effect on the patient’s day-to-day life before it was treated, the employer can also assume - again, in the absence of any contra-indication - that, if it does recur, its effect will be substantial. On this basis I agree with the interpretation which Baroness Hale adopts.

43.  My noble and learned friend, Lord Brown of Eaton-under-Heywood, adopts the same interpretation and bolsters it by reference to a hypothetical situation in which the employer might fail to take some reasonable step to accommodate the employee’s need to continue treatment measures which were being taken to treat or correct an impairment. The illustration refers to the employer’s duty of adjustment under section 6, in Part II of the 1995 Act. I have already explained that I prefer to construe para 6(1) within the context of Part I, which deals with the concept of disability as it applies across the various spheres to which the Act applies. Nevertheless, Lord Brown provides a further striking example of the potentially unacceptable consequences of interpreting “likely” as “probable".

44.  In the present case Ms Boyle had been continuing her management regime for years after 1992 - but apparently without any continuing involvement of doctors or other therapists. So it seemed to SCA at least possible that the problem of nodules on her vocal cords had been cured by the operation and that the management regime was serving no useful purpose. But, on the evidence, the tribunal held, on the balance of probabilities, that, if it had been abandoned, the nodules on her vocal cords would have recurred and have had a substantial adverse effect on her ability to carry out normal day-to-day activities during the relevant period. Although, in reaching this decision, the tribunal applied the wrong interpretation of “likely", its error favoured SCA. Moreover, there is no doubt that, given Ms Boyle’s history of nodules returning after the operation in 1975, the tribunal’s conclusion was open to it on the available evidence. It must accordingly stand. It follows that, during the relevant period, Ms Boyle was a “disabled person” for purposes of the 1995 Act. Therefore the tribunal must now go on to consider her complaints that during the relevant period SCA discriminated against her, as a disabled person, in three respects.

45.  As already emphasised, the issue as to whether an applicant is a “disabled person” is distinct from the issue of what the Act requires if the applicant is indeed such a person. In principle, therefore, it may be suitable for a pre-hearing review. In any given case the balance of advantages (e g the possibility of shorter proceedings) and disadvantages (e g the possible need for the same witness to give evidence twice) of holding such a hearing may often be more apparent in retrospect. Such a hearing can indeed work perfectly satisfactorily and, as, for example, in Woodrup v London Borough of Southwark [2003] IRLR 111, provide a convenient way of disposing of the application. On the other hand, the mere fact that the preliminary point is rejected does not show that a pre-hearing review was inappropriate. Even with the benefit of hindsight, I would hesitate to criticise the decision to hold the pre-hearing review in this case. But I would associate myself with everything which my noble and learned friends, Lord Hope of Craighead and Lord Neuberger of Abbotsbury, say about the subsequent delays and, in particular, about the case stated procedure.

46.  For these reasons and in agreement with Baroness Hale of Richmond I would dismiss the appeal.

BARONESS HALE OF RICHMOND

My Lords,

47.  A person has a disability for the purposes of the Disability Discrimination Act 1995 (the 1995 Act) if she has a physical or mental impairment which has a substantial and long-term adverse effect upon her ability to carry out normal day to day activities: 1995 Act, section 1(1). This definition looks to the present state of affairs but it is subject to Schedule 1 which also has provisions looking to the future.

48.  Most important for our purposes is paragraph 6(1):

“An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.”

In other words, if a person has an underlying impairment within the meaning of the Act, the effect of medical treatment and other corrective measures which enable the person concerned to function more normally is to be ignored. A blind person who can get about with a guide dog is still disabled. A person with Parkinson’s disease whose disabling symptoms are controlled by medication is still disabled. An amputee with an artificial limb is still disabled. (This provision does not apply to people with poor eyesight which is correctable by spectacles or contact lenses: otherwise no doubt most of the population would be disabled.)

49.  Also relevant for our purposes is paragraph 2(2):

“Where an 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.”

In other words, if the underlying condition fluctuates in the severity of its effects, the fact that they are not currently substantial does not matter if they are likely to become so again in the future. A person with multiple sclerosis may enjoy periods of remission in which the manifestations of her disease are not sufficiently severe to constitute a disability but there is always a risk that they will do so again. A person with congenital degeneration of the spine may be able to function quite normally as a result of surgery or other treatment but there is always a risk that further degeneration will result in further disability.

50.  These two provisions are quite different from one another. In one the adverse effects of the impairment would still be there if they were not being treated or corrected in some way. In the other the adverse effects are no longer there but there is an underlying susceptibility which means that they may recur.

51.  The issue before us is the degree of likelihood entailed in each of these provisions - the likelihood of a substantial adverse effect if the treatment or corrective measures were not taken or the likelihood of a recurrence of that effect at some time in the future. Does “likely” in each of these provisions mean probable or “more likely than not” or does it mean simply that it is a real possibility, something which “could well” happen?

52.  It is worth mentioning that the word “likely” appears elsewhere in Schedule 1. In paragraph 2(1), the effect of an impairment is a long term effect if it has lasted for 12 months or is likely to last for at least 12 months or for the rest of the person’s life. In paragraph 8, a progressive condition which has or has had some effect but not yet a substantial one, is to be treated as having a substantial effect if this is likely to result. Although the issue is not before us and we are not deciding it, it is usual for the same word to mean the same thing when used in the same group of statutory provisions.

53.  The issue comes before us in an unusual way. The Industrial Tribunal in Northern Ireland decided to treat the question of whether the applicant employee was disabled within the meaning of the Act as a preliminary issue. The Tribunal applied the “more likely than not” test but found in favour of the applicant. The respondent employer appealed by way of case stated to the Court of Appeal which applied the “could well happen” test and dismissed the appeal. The employer petitioned this House for leave to appeal. We granted leave because the Court of Appeal in Northern Ireland had applied a different test from the one which had hitherto been applied in England and Wales. This is a United Kingdom statute and it is one of the functions of this House to ensure that United Kingdom statutes are interpreted in a uniform way throughout the United Kingdom.

54.  However, those representing the applicant (presumably content that they had succeeded on the more stringent test) did not wish to argue that the proper test was the one which had been applied in the Northern Ireland Court of Appeal. This would have left the House without the benefit of any legal argument other than that of the appellant employer. Accordingly we invited the Attorney General to appoint an amicus curiae. In fact she did better than that and invited the Equality and Human Rights Commission to intervene in the appeal. This they have done and we are most grateful to them and to their counsel, Robin Allen QC and Catherine Casserley, for the help which they have given us. The respondent, Mrs Boyle, has been present throughout the hearing but did not wish to address us.

The facts

55.  Mr Allen describes the case as a paradigm and it is easy to see why. It illustrates the problem very well.

56.  Mrs Boyle was first employed by these employers in 1969 and held the position of buyer/stock controller from 1978. In 1974 she consulted an ENT surgeon after 12 months’ suffering from hoarseness. In November 1975 she had an operation to remove nodules or nodes from her vocal chords. In April 1981 she again consulted an ENT surgeon suffering from vocal nodes. After many months of speech therapy, one of these had reduced in size and the other had disappeared. She continued with the speech therapy.

57.  In December 1991, after four months of hoarseness, she again consulted an ENT surgeon and in January 1992 she was told to rest her voice for four months, during which time she was off work. In April 1992, she saw a speech therapist and was given vocal and breathing exercises. She was advised to follow a strict “management regime” to conserve her voice. This involved sipping water throughout the day to counteract dry, warm and sometimes smoky environments, increasing humidity, ceasing throat clearing, avoiding certain foods and liquids which affect the voice adversely, reducing the length of telephone calls and staggering them, trying not to shout or raise the voice over distance or above other noise, turning off or moving away from background noise, refraining from singing and humming, resting the voice at key points throughout the day especially when it had been heavily used or had deteriorated, avoiding passive smoking, exercising regularly to improve breath support and overall well-being, and taking time to relax.

 
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