Employment Law Advocates

A¬†key role¬†of the House of Lords is preserving consistency in the interpretation of statutes across many different areas of law. While it¬†is sometimes criticised, containing as it does no employment lawyers, for losing sight of industrial reality, it can also provide a refreshingly straightforward approach. Such is the case in SCA Packaging v Boyle, which concerns the meaning of the word ‘likely’ in determining, for the purposes of the Disability Discrimination Act, whether or not¬†the adverse effect of an impairment is likely to recur or whether¬†such an effect¬†would be likely to¬†exist in the absence of corrective measures.

In doing so, it prefers the decision on appeal from the Northern Ireland Court of Appeal to previous authority from the Employment Appeal Tribunal sitting in England and it expressly rejects the Guidance issued by the Secretary of State, perhaps the only instance of a decision of a higher court being more generous to claimants than statutory guidance.¬†The unanimous conclusion of their Lordships is that ‘likely’ means ‘could well happen’ rather than ‘more probable than not’¬†so disability is easier to prove.

Some criticisms of the case management decisions made by the original tribunal could also have some far-reaching implications. The Law Lords suggest that there should not have been a preliminary hearing on the question of whether or not the Claimant was disabled, Lord Rodger of Earlsferry dissenting on this point. Both Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood then go much further and make some more general remarks, stating that a pre-hearing review should not be used if there is no knock-out point which would probably decide the case or if there is likely to be a substantial factual overlap between the issues to be decided in the preliminary hearing and the full hearing. If this case is followed, it will surely result in rather fewer pre-hearing reviews being used by employment tribunals.