The House of Lords has handed down a landmark judgement on the Disability Discrimination Act (DDA) this week. The ruling focused on the meaning of “likely” (a phrase we’re reliably informed appears four times in the legislation, although only two of these were subject to consideration in the judgement).
The case followed changes to a working environment, and whether the noisier environment would cause problems for an employee who sought protection under the DDA. (In traditional employment law fashion, the case has been in the courts for nearly seven years so far, but the question of whether the employee is actually covered by the DDA is yet to be determined!) The employee had historical problems with hoarseness caused by nodes on the vocal chords (which we gather means she couldn't talk too loudly), although this hadn’t been causing complications in the work environment prior to the changes. The concern was that in the revised working environment, there was a greater chance of the disability becoming worse. Basically, the consideration for the House of Lords was: what chance of a relapse or worsening of the condition the potential risk should be measured against?
The relevant legislation is in Schedule 1 of the DDA:
Paragraph 2(2) – "Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out day-to-day activities, it is to be treated as having that effect if that effect is likely to recur."
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 its ruling, the House of Lords had to decide what “likely” meant within the legislation, and whether a previous judgment was correct to suggest it should be taken to mean at least a 51% chance. This opinion was rejected, and what is being widely seen as a lower standard of “could well happen” has now been introduced into law.
The consequence of this judgement will be the wider protection of the DDA: it applies to employees (and other persons who use the access, use the services of, etc, a company) with “a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.” But now, employees who do not suffer any long-term effect will still be protected if a long-term effect “could well happen” in the future, rather than if this is more than 50% likely to be so (impossible to put a figure on this new test).
With this extension to the scope of the term “disability”, there will be more employees entitled to the protection of the DDA in the workplace.
In terms of what actions employers should now take, there is very little practical advice available yet – although with little obviously necessary either.
Nonetheless, following this ruling there will invariably be employees out there that should now be treated as having a disability. If changes are being considered or proposed in the workplace, the impact & whether reasonable adjustments might be necessary will then need to be considered for any staff protected by the legislation.
The most obvious trap that employers should avoid is determining whether any staff are disabled. The law states (paraphrased from Section 4A (3)) that no duty is imposed on an employer if the employer does not know, and could not reasonably be expected to know, that a person has a disability and is likely to be affected in the way mentioned in the subsection (1).
The question that arises then is whether the employer could reasonably know about a condition. As an example, if a member of staff previously had a medical issue of which the employer was aware, although this may now be resolved & not causing an impact without medication or other regular treatment*, if a relapse “could well happen” – even if the employee hasn’t formally declared a disability – the employer could reasonably be expected to take this into account, and treat the employee as disabled for the purposes of the Act.
The best policy, where changes to working practices or the environment could potentially have an impact (even unforeseen) on parts of the workforce, is to seek a second opinion, and if necessary legal advice.
*If there is ongoing treatment, the DDA still applied anyway.
(For those interested in bedtime reading, the full judgement can be found at
House of Lords - SCA Packaging Limited (Appellants) v Boyle (Respondent) (Northern Ireland)).
Employment Law Clinic
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Widened scope for the Disability Discrimination Act
