There has not been much of late to shout about if you are a disabled employee. At times it appears that the whole world is out to get you. However karma and balance will eventually be restored and Mrs Boyle would appear to be the first beneficiary.
Baroness Hale is as usual at the forefront of making things easier for the disabled employees. Her judgment is easily comprehensible. Is she the only Law Lord who really understands why we have protection for disabled employees?
Anyway she goes through the law and then says at paragraph 67, “In this House we start with a clean slate”. What follows is a very important change in the burden of showing something is likely under the Disability Discrimination Act 1995. Gone is the 51% and in comes the “could well happen” test.
Lord Rodger gives a very good explanation of what could well happen means at paragraph 41:
“In their everyday practice doctors do not usually need to consider whether a patient’s condition would “probably” recur if he did not continue to take some drug or follow a particular exercise or other treatment regime. On the one hand, a doctor does not prescribe a continuing course of treatment if it is unnecessary - in other words, where she considers that the condition or its symptoms will not recur if the patient stops the treatment. But, equally, unless perhaps the side-effects are particularly unpleasant or the cost of the drug is prohibitive, 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 Girvan LJ’s phrase, and when, accordingly, it is worthwhile to continue the treatment.”
In short it is now easier to demonstrate that something is likely to happen. The impact of this decision is far reaching as it will reduce the Richmond effect (see earlier posts on recurrence) that has lead to so many cases falling at the ‘likely to last 12 month hurdle’. I have succeeded twice in the last year for Respondent’s on this point and doubt whether I would get the same result after Mrs Boyle. Conversely I have had to advise a Claimant to drop part of her disability claim because of the 51% test then being applied by Tribunals.
The balance has now shifted back in favour of disabled employees and it is likely to swing further in the next 12 months. Perhaps we can now get back to focusing on the factual namely justification defences rather than legal barriers erected by clever lawyers!
Am I happier? Well being a lawyer I find the concept of 'could well happen' a bit more difficult than 51% but I am sure I will get used to it.
Baroness Hale is as usual at the forefront of making things easier for the disabled employees. Her judgment is easily comprehensible. Is she the only Law Lord who really understands why we have protection for disabled employees?
Anyway she goes through the law and then says at paragraph 67, “In this House we start with a clean slate”. What follows is a very important change in the burden of showing something is likely under the Disability Discrimination Act 1995. Gone is the 51% and in comes the “could well happen” test.
Lord Rodger gives a very good explanation of what could well happen means at paragraph 41:
“In their everyday practice doctors do not usually need to consider whether a patient’s condition would “probably” recur if he did not continue to take some drug or follow a particular exercise or other treatment regime. On the one hand, a doctor does not prescribe a continuing course of treatment if it is unnecessary - in other words, where she considers that the condition or its symptoms will not recur if the patient stops the treatment. But, equally, unless perhaps the side-effects are particularly unpleasant or the cost of the drug is prohibitive, 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 Girvan LJ’s phrase, and when, accordingly, it is worthwhile to continue the treatment.”
In short it is now easier to demonstrate that something is likely to happen. The impact of this decision is far reaching as it will reduce the Richmond effect (see earlier posts on recurrence) that has lead to so many cases falling at the ‘likely to last 12 month hurdle’. I have succeeded twice in the last year for Respondent’s on this point and doubt whether I would get the same result after Mrs Boyle. Conversely I have had to advise a Claimant to drop part of her disability claim because of the 51% test then being applied by Tribunals.
The balance has now shifted back in favour of disabled employees and it is likely to swing further in the next 12 months. Perhaps we can now get back to focusing on the factual namely justification defences rather than legal barriers erected by clever lawyers!
Am I happier? Well being a lawyer I find the concept of 'could well happen' a bit more difficult than 51% but I am sure I will get used to it.
Peter D
SCA Packaging Limited v Boyle [2009] UKHL 37
Richmond Adult Comunity College v Mcdougall [2008] EWCA Civ 4
