SCA Packaging Limited (Appellants) v Boyle (Respondent) (Northern Ireland), (2009)

 
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HOUSE OF LORDSSESSION 2008-09[2009] UKHL 37 on appeal from:[2008]NICA 48 OPINIONSOF THE LORDS OF APPEALFOR JUDGMENT IN THE CAUSESCA Packaging Limited (Appellants) v Boyle (Respondent) (Northern Ireland)Appellate CommitteeLord Hope of CraigheadLord Rodger of EarlsferryBaroness Hale of RichmondLord Brown of Eaton-under-HeywoodLord Neuberger of AbbotsburyCounselAppellant:Noelle McGrenera QCPaul Rodgers (Instructed by J Blair Solicitors)Interveners : Equality and Human Rights Commission:Robin Allen QCCatherine Casserley(Instructed by Legal Enforcement Team EHRC )Hearing date :11 MAY 2009ONWEDNESDAY 1 JULY 2009HOUSE OF LORDSOPINIONS OF THE LORDS OF APPEAL FOR JUDGMENTIN THE CAUSESCA Packaging Limited (Appellants) v Boyle (Respondent) (Northern Ireland)[2009] UKHL 37LORD HOPE OF CRAIGHEADMy Lords,1.  I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. I am grateful to her for setting out the background to this case, and for the way she has identified the issues that are before us. I agree with her and with my noble and learned friend Lord Rodger of Earlsferry, whose opinion I have also had the advantage of reading, that the Court of Appeal applied the right test and that this appeal should be dismissed.2.  The definition of “disability” lies at the heart of the Disability Discrimination Act 1995. So a proper understanding of what it means is essential if all those who are disabled, as that term is defined in the Act, are to be brought within its protection. Parliament went to considerable lengths to define this expression. First, there is the general test laid down in section 1(1), which provides:“Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has 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.”Then there are provisions in Schedule 1 which examine the issue in much more detail. In each paragraph there is a power to make regulations in the light of how the paragraph to which it relates is working out in practice. And there are the provisions that the Schedule itself sets out. Not only is it important that these detailed provisions should be understood and applied in the right way. It is important that they should be interpreted uniformly throughout the United Kingdom. The modifications of its provisions in its application to Northern Ireland that Schedule 8 sets out do not affect the meaning of the word “disability". So our agreement with Girvan LJ that the word “likely” in para 6(1) of Schedule 1 is used in the sense of “could well happen” will now have to be applied throughout the United Kingdom. That is one respect in which this case is of general public importance. As Baroness Hale explains, the test that has been applied hitherto in England and Wales must now give way to that which has been adopted in Northern Ireland. 3.  The case is also important for people who, like Mrs Boyle, are in need of the protection of para 6(1) of Schedule 1. They include those suffering from conditions such as diabetes or epilepsy whose disability is concealed from public view so long as it is controlled by medication. Their disability is insidious. The measures that are taken to treat or correct it, so long as they are effective, enable them to carry on normal day-to-day activities just like everyone else. But the disability is there nevertheless. It lives with them all the time, as does the awareness that the measures that are taken to treat or correct it may not be wholly effective. Doctors do what they can to prescribe appropriate medication, bearing in mind the likely risk of side effects as well as its effectiveness. But it does not always work, and the precautions that people have to take against that eventuality may in themselves be disabling in a way that is often misunderstood: refraining from driving or operating heavy machinery, for example. In Mrs Boyle’s case the management regime which enabled her to live with her voice dysfunction without having further therapy but which an employer might find inconvenient or even irritating was of that character. 4.  Para 6 strikes a fine balance between the need to protect those who are in that position and those whose underlying condition does not meet the general test that section 1(1) lays down. The general test will be satisfied if the impairment would be “likely” to be substantial but for the fact that measures to treat or correct it are being undertaken. It directs attention to the extent of the impairment that would result, not to how it ought to be treated. But the fact that measures are being taken to treat or correct it, too, is the product of an assessment of what is “likely". Sometimes predictions of this kind are expressed in percentage terms for the guidance of patients by physicians and pharmacists. But decisions as to whether measures should or should not be taken are rarely expressed in this way. Choices may have to be made in situations where it is quite difficult to predict what will happen with any degree of accuracy. In this context asking the question whether it is more probable than not is inappropriate. I agree with my noble and learned friends that the purposes of the Act are best served by adopting the broader and less exacting test as to what is “likely” that Girvan LJ has identified.The procedure5.  I am however uneasy about some aspects of the procedure that was adopted in this case. Mrs Boyle lodged her claim in the Office of Tribunals over six years ago on 19 October 2001. It has still not been resolved. The merits of her claim of unlawful discrimination have yet to be addressed. Part of the delay appears to have been due to the fact that at a case management discussion on 4 November 2004 SCA said that it disputed that Mrs Boyle was a disabled person for the purposes of the Disability Discrimination Act 1995. The Vice-President directed that there should be a preliminary hearing on that question. Four issues were identified to be determined by the tribunal at a pre-hearing review: (i) whether Mrs Boyle suffered from a physical impairment; (ii) whether she suffered adverse effects on her day-to-day activities because of that impairment; (iii) whether any adverse effect on her day-to-day activities was substantial; and (iv) whether any adverse effect on her day-to-day activities was long-term (a) on a continuing basis for 12 months or more, or (b) deemed to be on a continuing basis taking account of the deduced effects provisions, or if it persisted for 12 months or more in the past whether, during the relevant period of 27 September 2000 - 19 November 2002, it was likely to recur. 6.  The issues which the Vice-President identified were, of course, preliminary issues. There would have been no need for the tribunal to address the question whether Mrs Boyle had been discriminated against if she was not a disabled person during the relevant period. But it will have been obvious from the outset that these were issues of real substance which were likely to take some time to determine. In the event the process took very much longer than must have been anticipated. The pre-hearing review began a year later on 30 November 2005. It was not possible to complete the review in the one day that had been set aside for it, so further hearings took place on 6, 8, 9 and 27 February 2006. Medical and speech therapy reports were tended in evidence, and they were supplemented by oral evidence which was given by five consultant surgeons and a speech therapist. It was not until 23 May 2006, more than four years after the claim was lodged, that the tribunal issued its decision.7.  The delay was further contributed to by the stated case procedure. SCA lodged a requisition for a stated case on 3 July 2006. A case was issued, signed and dated by the chairman on 19 February 2007. On 12 March 2007 SCA’s solicitor wrote to the tribunal expressing concern at the fact that the parties had not been given an opportunity to comment on the case stated before it was issued in its final form, particularly as some of the questions in the requisition had been rejected by the chairman. The parties were then given an opportunity to submit comments on the case stated. On 11 May 2007 a hearing took place to enable the parties to make oral submissions. On 3 July 2007 the case stated was issued in its final form by the tribunal. The hearing took place in the Court of Appeal on 8 February 2008. Its judgment was issued eight months later on 9 October 2008.8.  It should be recorded, in fairness to the tribunal, that the chairman who dealt with the pre-hearing and who had delivered an admirably clear and comprehensive decision on the issues raised at the preliminary hearing was off work due to illness when the requisition was received. She did not return to work until 13 November 2006, and then on medical advice on a part-time basis only. The case was issued 14 weeks later on 19 February 2007. What follows is not intended in any way to criticise the way the case was handled by the chairman. It is the procedures which were adopted that give rise to concern.Whether a preliminary hearing was appropriate9.  It has often been said that the power that tribunals have to deal with issues separately at a preliminary hearing should be exercised with caution and resorted to only sparingly. This is in keeping with the overriding aim of the tribunal system. It was set up to take issues away from the ordinary courts so that they could be dealt with by a specialist tribunal as quickly and simply as possible. As Lord Scarman said in Tilling v Whiteman [1980] AC 1, 25, preliminary points of law are too often treacherous short cuts. Even more so where the points to be decided are a mixture of fact and law. That the power to hold a pre-hearing...

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