This is the first case to reach the HL on certain of the complex and more nuanced aspects of the Disability Discrimination Act 1995 (“DDA”) pertaining to the meaning of “disability” a trigger to protection under its main provisions.

As the Northern Ireland Court of Appeal, from which the appeal was brought, recognised, the DDA enacts a principally medical model of disability. Nevertheless, ‘disability’ under the DDA is not entirely to be determined by reference to functional ability. The social consequences of the existence of an impairment, whatever its effect on functional ability, is recognised in certain of the DDA’s provisions. Those provisions were considered by the HL in this case and the result was a comfortingly progressive and pragmatic decision (and might be contrasted with the devastatingly regressive effect of its decision in Malcolm v Lewisham [2008] UKHL 43).

The House of Lords in this case was required to determine the meaning of ‘likely’ in the DDA, in particular for the purposes of determining whether any impairment would be ‘likely’ to have a substantial adverse effect but for the fact that measures are being taken to treat or correct it: paragraph 6(1), Sch 1.  This ‘benign doctrine’ provides protection to a person who has an impairment but who is not functionally ‘disabled’ because measures are being taken to avoid the impairment’s effects (medicine, therapy, changes to lifestyle etc) and, but for these, the ‘likely’ effect of the impairment would be substantial. This recognises that the mere existence of an impairment may affect a person, in terms of its social consequences, notwithstanding the absence of any present functional impairment.  In this way the concept of ‘disability’ under the DDA embraces certain of its social consequences.  The question the House of Lords had to address was what ‘likely’ meant in this context. Contrary to existing English Court of Appeal authority and the guidance issued by the Disability Rights Commission (both in force at material times and in force presently), the HL held that ‘likely’ did not mean more ‘probable than not’. Instead it means, in the context of the DDA, ‘could well happen’, adopting the approach of the NICA. This recognises the impact of a conclusion otherwise including the impossibility in many, perhaps most, cases of determining whether any measures (including medical treatment) if ceased would result in an existing (otherwise benign) impairment having the effect necessary to trigger protection under the DDA.  This is important for the realistic approach it takes and for the Lords recognition of the overly formalistic and counter – purposive consequences of a construction otherwise.  

It will, as the Lords recognised, determine the meaning to be afforded ‘likely’, which appears elsewhere in the DDA (including as to the meaning to be afforded the concept of disability in different contexts), generally under the DDA.

The House of Lords comment too on the utility of the preliminary hearing procedure in Employment Tribunals in some cases and this will provide some comfort to Claimants’ lawyers faced with the common tactic of an aggressive Respondent seeking to delay final determination of a claim.  Their Lordships also made certain observations about the case stated procedure applicable in Northern Ireland and in particular its operation in this case and on improvements that might be made to the rules in Northern Ireland addressing the same.

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