House of Lords, July 2009.
The House of Lords held in favour of a wider interpretation of ‘disability’, as regards the meaning of the word ‘likely’. In looking at whether substantial effects of an impairment would be ‘likely’ if measures to alleviate them were stopped, it is enough that the effects ‘could well happen’. The same applies generally in deciding whether effects are ‘likely’ to recur in future. Also statutory interpretation is for the courts to decide, not official guidance. Finally, a voice management regime to avoid recurrence of vocal nodules could count as ‘measures’, so that one looked at likely effects were it not being used.
The claimant used a voice management regime to avoid problems of vocal nodules and hoarseness. The employer argued that she did not have a disability within the DDA. She said that unless she continued the regime, the hoarseness and thus the substantial adverse effects of her impairment would be likely to re-occur, and that under DDA Schedule 1 para 6 one had to look at the adverse effects that would be ‘likely’ if she were not continuing the regime.
The House of Lords held that:
- ‘likely’ in Sch 1 para 6 means only ‘could well happen’, rather than ‘more probable than not’. Para 6 says that even if an impairment does not currently have the substantial effect required to be a ‘disability’, one can take into account what substantial effect it would be likely to have but for measures which are being taken to treat or correct it. The House of Lords decision means the claimant only has to show the required substantial effects ‘could well happen’ without the measures, not that they are ‘more probable than not’. See Disability: Therapy.
- the ‘could well happen’ test also applies where an impairment has ceased to have a substantial adverse effect other than through using ‘measures’. There can still be a disability if the relevant adverse effect is ‘likely’ to (i.e. could well) reoccur in future: DDA Sch 1 para 2(2). See Likelikhood of re-occurrence…
- According to offical guidance, ‘likely’ meant ‘more probable than not’. But the House of Lords said statutory interpretation was for the courts to decide, without considering the official guidance. The House started “with a clean slate”.
Also, the Court of Appeal in Northern Ireland confirmed that a voice management regime to avoid recurrence of vocal nodules could count as ‘measures’, so that one looks at what effect the impairment would be ‘likely’ to (could well) have if the person were not using that regime.
In April 2010 it was reported that the parties had agreed a settlement: £125,000 for Woman In Settlement Of Landmark Discrimination Case (pdf, link to equalityni.org).
The Court of Appeal’s decision helps support the argument that a person who stammers can still be ‘disabled’ if he is speaking fluently using speech techniques (though in any event these techniques will often fail in some instances). See Disability: Therapy.
The ‘could well happen’ test confirmed by the House of Lords also lessens the burden of showing how speech would be if therapy or techniques were no longer used, or if an altered auditory feedback device were not being used – see Disability: Therapy. Also if a stammer is going through a ‘good patch’ without using any particular techniques, this test makes it easier to argue that there is still a disability because of the real danger of a relapse in future – see Likelihood of re-occurrence.
The complainant had objected to the adverse effect on her voice of increased noise from a partition being taken down between her office and the stock control room. Whether keeping the partition would have been a reasonable adjustment in the circumstances has yet to be considered by the Tribunal, since the argument so far has just been on whether she has a disability. However this kind of adjustment, giving some degree of isolation in an open plan office, may also be useful to people who stammer. See Examples of reasonable adjustments: Open plan offices.
In more detail: Facts
The question was whether the claimant had a ‘disability’. She had suffered from hoarseness in various episodes since 1974, probably as a result of extensive use of her voice for singing and acting. She had had an operation, and had undergone speech therapy. She was advised to follow a regime to conserve her voice (see box on right). There was some conflict in evidence as to how likely the vocal fold nodules were to recur.
The Industrial Tribunal concluded that when affected by vocal nodules, her ability to speak and socialise was affected, the activities affected were ‘normal day to day activities” (see second paragraph in box), and the effect was more than minor or trivial and was thus ‘substantial’.
The Tribunal also concluded that the voice management regime was ‘measures’ within DDA Schedule 1 para 6, so that one looked at what effect the impairment would have without the measures. It also concluded that the vocal fold nodules were ‘likely’ to recur if she did not follow the vocal fold management regime which she was following.
DDA Schedule 1 paragraph 6 says:
“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.”
“…measures’ includes, in particular, medical treatment and the use of a prosthesis or other aid.”
In part, her claim seems to have been for failure to make reasonable adjustments. A new manager had decided to take down the partition separating her office from the stock control room. She thought that the increased noise levels would have a substantial adverse effect upon her health.
Court of Appeal in Northern Ireland
The Court of Appeal upheld the Tribunal’s decision (as did the House of Lords).
The employer argued the evidence did not establish a likelihood of recurrence of the nodules, only a risk of recurrence. However, the Court of Appeal said that in the context of paragraph 6, ‘likely’ is used in the sense of ‘could well happen’ rather than ‘more probable than not’. The Court of Appeal’s reasoning for this, as quoted by the House of Lords, is set out under the next heading.
Was the voice managment regime ‘measures’ within paragraph 6? The Tribunal thought that it was. ‘Measures’ were defined in the legislation as including but not restricted to medical treatment and prosthetic aids. The Court of Appeal considered the Tribunal’s conclusion both reasonable and logical. “The voice management regime is in the nature of a measure which is followed in order to mitigate the risk of the adverse consequences which would flow if it was not followed. The Tribunal concluded that if she had not followed the regime she would have suffered from hoarseness and ultimately nodules. The regime militated against their recurrence.” This aspect does not seem to have been appealed to the House of Lords.
House of Lords
‘Likely’ is used in sense of ‘could well happen’
The House of Lords confirmed the decision of the Court of Appeal. Baroness Hale, giving the main judgment of the House, set out two main reasons:
- The civil courts were used to deciding whether or not something has happened in the past
‘on the balance of probabilities’ – whether it is more likely than not
that something happened. However, predictions are very different from
findings of past fact. In many cases, who can say whether something is
more than a 50/50 chance? But assessing whether something is a risk
against which sensible precautions should be taken is an exercise we
carry out all the time. As Girvan LJ put it in the Court of Appeal:
“The prediction of medical outcomes is something which is frequently difficult. There are many quiescent conditions which are subject to medical treatment or drug regimes and which can give rise to serious consequences if the treatment or the drugs are stopped. These serious consequences may not inevitably happen and in any given case it may be impossible to say whether it is more probable than not that this will occur. This being so, it seems highly likely that in the context of paragraph 6(1) in the disability legislation the word ‘likely’ is used in the sense of ‘could well happen’.”
Witnesses from any branch of medicine (including the professions related to medicine such as speech therapy) will, said Baroness Hale, be far more comfortable with assessing the reality of the risk rather than putting precise percentages upon it.
- Furthermore, the finding of disability was a threshold. “In most cases, the question is whether the employer should have made reasonable adjustments to cater for the disability. The real issue in this case is whether it was reasonable to expect the employer to continue to adjust the working environment to take account of Mrs Boyle’s problems with her voice or whether it was not. The employer needs to know this in real time, and not to have to wait until a Tribunal has heard all the evidence and reached a conclusion about what is more likely than not to happen in the future. As with the child care cases, the question here should be, are these adverse effects sufficiently likely to require us to consider what, if any, adjustment should be made to take account of them?”
Baroness Hale, Lord Brown and Lord Neuberger evidently considered that this ‘could well happen’ interpretation also applies in DDA Sch 1 para 2(2). Para 2(2) says that where an impairment ceases to have the required substantial adverse effect, it is to be treated as continuing to do so if the effect is ‘likely’ to recur (Likelihood of re-occurrence…). Baroness Hale comments that paragraph 6 and paragraph 2(2) are quite different from one another. In the first the adverse effects of the impairment would still be there if they were not being treated or corrected in some way. In the second the adverse effects are no longer there but there is an underlying susceptibility which means that they may recur.
Lord Hope (at paragraph 3) commented that this interpretation of ‘likely’ in Sch 1 para 6 applied throughout the UK, not just in Northern Ireland (and the same doubtless applies for Sch 1 para 2(2)).
Lord Rodger reached the same conclusion on Sch 1 para 6 but did not want to base it on the “supposed difficulty for doctors in determining the issue … on the balance of probabilities.” Subject to side effects, “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 [the Court of Appeal’s] phrase, and when, accordingly, it is worthwhile to continue the treatment.” It made sense to interpret ‘likely’ in para 6 against that background. He continued:
“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.”
Role of offical guidance
Two of their Lordships were rather dismissive of the official guidance on the definition of disability, when it came to deciding how the DDA should be interpreted. (The guidance considered in this case has now been superseded – links on current Great Britain guidance and Northern Ireland guidance.)
Baroness Hale commented (para 67):
“In this House, we start with a clean slate. The Guidance has, of course, to be taken seriously into account when it deals with the factual matters which are relevant to the application of the legal tests. It is common for statutory Guidance to try to explain, not only how the legislation should be put into effect by the people who have to apply it, but also what the legislation means. But that is simply being helpful to practitioners who are not lawyers and may never read the legal texts. Statutory construction remains a matter for the courts, not for Departmental Guidance. If the court considers that the Guidance is a mis-statement or mis-application of what Parliament has enacted, then it must say so.”
Also Lord Rodger commented that that though the Guidance said it is ‘likely’ that an event will happen if it is more probable than not that it will, there was 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.” (para 36).
Voice management regime, and adverse effect
The voice management regime 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.” (para 57, House of Lords judgment).
The Industrial Tribunal found the claimant suffered an adverse effect upon her normal day to day activities – “the ability to talk without losing one’s voice or vocal volume, to converse without having to plan voice-use and without having to allow for voice rest after moderate use, to talk on the telephone without having to take compensatory lengthy voice rest, and so on.” (para 60, House of Lords judgment)
This case was cited in the House of Lords debates on the Equality Bill, at Report Stage. Baroness Thornton, Parliamentary Under-Secretary of State at the Department of Health, said in the context of fluctuating or recurrent adverse effects (col 1338 HL Hansard 2/3/10 (link to UK Parliament website)):
‘The relevant test of whether something is likely to recur has been held by the House of Lords to mean only that something “could well happen”, rather than that it had to be “probable” or “more likely than not”. This test is relatively easy to satisfy and so anyone whose depression could well recur would be covered by the provision as it stands.’
As to how far courts should take account of statutory guidance and Codes of Practice, there have been later cases on this. See Legal effect of statutory guidance and codes.