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|Judgments - SCA Packaging Limited (Appellants) v Boyle (Respondent) (Northern Ireland)
HOUSE OF LORDS
 UKHL 37
on appeal from:NICA 48
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
SCA Packaging Limited (Appellants) v Boyle (Respondent) (Northern Ireland)
Lord Hope of Craighead
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury
Noelle McGrenera QC
(Instructed by J Blair Solicitors)
Interveners : Equality and Human Rights Commission:
Robin Allen QC
(Instructed by Legal Enforcement Team EHRC )
Hearing date :
11 MAY 2009
WEDNESDAY 1 JULY 2009
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
SCA Packaging Limited (Appellants) v Boyle (Respondent) (Northern Ireland)
 UKHL 37
LORD HOPE OF CRAIGHEAD
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 Boyles 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.
5. 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 SCAs 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 appropriate
9. 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  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 exists is not in doubt: Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (SR 2005/150), Schedule 1, rule 18. There are, however, dangers in taking what looks at first sight to be a short cut but turns out to be productive of more delay and costs than if the dispute had been tried in its entirety, as Mummery J said in National Union of Teachers v Governing Body of St Marys Church of England (Aided) Junior School  ICR 317, 323. The essential criterion for deciding whether or not to hold a pre-hearing is whether, as it was put by Lindsay J in CJ O'Shea Construction Ltd v Bassi  ICR 1130, 1140, there is a succinct, knockout point which is capable of being decided after only a relatively short hearing. This is unlikely to be the case where a preliminary issue cannot be entirely divorced from the merits of the case, or the issue will require the consideration of a substantial body of evidence. In such a case it is preferable that there should be only one hearing to determine all the matters in dispute.
10. In Chris Ryder v Northern Ireland Policing Board  NICA 43,  4 BNIL 34, para 16, Kerr LCJ said:
A number of recent appeals from decisions of the Fair Employment/Industrial tribunals have involved challenges to conclusions reached on preliminary points - see, for instance, Bombadier Aerospace v McConnell and Cunningham v Ballylaw Foods. While I do not suggest that the hearing of a preliminary issue will never be appropriate for determination by a tribunal, I consider that the power to determine a preliminary point should be sparingly exercised. It is, I believe, often difficult to segregate in a wholly compartmentalised way a single issue in this field from other material that may have relevance to the matter to be decided.
I would respectfully endorse those observations. The problem in this case is not so obviously one of overlap or inappropriate compartmentalisation. Mrs Boyles complaint that she was subjected to harassment and aggressive and hostile treatment is a distinct issue, although it seems likely that the effects that this may have had on her, if established, will not be capable of being determined without the leading of more medical evidence. It is rather the cost and delay that has been caused by separating out those aspects of the case from the question whether she was a disabled person within the meaning of the Act. The separation of these two fundamental issues, which are likely to be present in many disputed disability discrimination cases, will rarely be appropriate even if the parties are in favour of it. Furthermore the decision to hold a pre-hearing review must not be regarded as the end of the process of case management. If separation is resorted to, every effort must be made to ensure that pre-hearing reviews are dealt with the least possible delay, bearing in mind that the merits cannot be addressed until the preliminary issues have been resolved in the claimants favour.
The stated case procedure
11. Paragraph 22(1) of the Industrial Tribunals (Northern Ireland) Order 1996 (SI 1996/1921 (NI 18)) provides:
A party to proceedings before an industrial tribunal who is dissatisfied in point of law with a decision of the tribunal may, according as rules of court may provide, either
(a) appeal therefrom to the Court of Appeal, or
(b) require the tribunal to state and sign a case for the opinion of the Court of Appeal.
12. Under the existing rules the only way that a decision of a tribunal may be brought under the review of the Court of Appeal is by means of the stated case procedure. The alternative of an appeal which the 1996 Order contemplated offers a simpler and, no doubt, cheaper alternative. It would, of course, require an express provision in the rules to make this alternative available. This case demonstrates that there is an urgent need for fresh consideration to be given to the question whether this change in the rules should now be made. What follows is without prejudice to that primary recommendation.
13. Order 61, rule 1 of the Rules of the Supreme Court (Northern Ireland) 1980 provides:
(1) Subject to any statutory provision, the party (hereinafter called the applicant) at whose instance a case has been stated by a court, tribunal or person on a point of law for the opinion of the Court of Appeal must, within 14 days after receiving it -
(a) enter the appeal for hearing by lodging the case stated with a duly stamped requisition for hearing in the Central Office;
(b) serve upon every other party to the appeal a copy of the case stated with the date of such entry endorsed thereon.
(2) Where a case may be stated for the opinion of the Court of Appeal under any statutory provision and in so far as it makes no provision as to the procedure for stating and sending the case to the applicant, then -
(a) the requisition to state the case must be lodged with the court, tribunal or person within 6 weeks commencing on the day the decision complained of was sent to the applicant; and
(b) the case must be settled by the court, tribunal or person and sent to the applicant within a period of 6 weeks commencing on the day the requisition was received.
14. The stated case procedure involves the tribunal in stating the findings of fact on which its decision was based, rehearsing the evidence relevant to those findings and giving its reasons. It proceeds upon the assumption that these details are often not given in full, or even at all, at the time when the decision is made. Section 13 of the Stamp Act 1891 provides an early example of the use of this procedure: see now section 13B as substituted by section 109(3) of and para 2 of Schedule 12 to the Finance Act 1999. The procedure is cumbersome but appropriate in such cases. In cases such as the present, however, where a full decision was given by the tribunal in the first instance it makes very little sense for the tribunal to be required to rehearse its decision all over again. If the original decision contains all the tribunals findings of fact that are relevant to the point at issue and a narrative of the evidence on which the findings were based, it will be sufficient for the decision itself to be used as the basis for consideration of the question of law by the Court of Appeal. All that needs to be added is an introductory narrative and the questions on which the case is being stated.
15. In the present case the chairman set out her original decision with admirable clarity. It contained her findings of fact on all the relevant issues, together with a narrative of the evidence on which those findings were based. Upon receipt of the requisition she began again. She re-wrote all this material, combining the same findings of fact with a fresh but essentially unchanged narrative of the evidence. Her diligence in undertaking this exercise is to be commended. But it turned out, in the event, to have been wholly unnecessary as the original decision contained all the material that was necessary for the determination of the appeal. As it is, this procedure occupied a period of six months instead of the period of six weeks referred to in Ord 61, r 1(2). Although part of this time is attributable to the fact that the chairman was ill, much of it must have been due to the nature of the exercise that confronted her. She then settled the case without giving either party an opportunity to provide her with comments on the case stated. The fact that no provision is made in the rule for this procedure may have contributed to this mistake. A further period of five months was occupied by this process, for which the Ord 61, r 1 provides no timetable.
16. I am acutely conscious of the fact that the Courts in Northern Ireland are far better placed than the House of Lords can ever be to assess what changes in practice or procedure might appropriately be made to deal with the problems that have been revealed by the present case. I discussed this point in Girvan v Inverness Farmers Dairy 1998 SC (HL) 1, p 21, where I said that a decision by the House of Lords on a matter of practice in the Court of Session would lack the process of consultation which was needed to ensure general acceptability, and that it would lack flexibility too, as a decision of the House would be binding on the Court of Session and it would be very difficult to reverse except by legislation. The proper approach for the House to take therefore was to leave it to the Court of Session to decide what changes, if any, should be made to its own rules. I referred to it again in Montgomery v HM Advocate  1 AC 641, 655. What is true for Scotland is true for Northern Ireland too. So it is with all due diffidence that I offer the following comments on what might be done to reduce delays in the use of this procedure.
17. It respectfully seems to me that the opportunities for delay that have been demonstrated by this case, and may indeed be inherent in the current procedure, could be minimised by reformulating Order 61, rule 1 so that the issue as to the questions with reference to which the case is to be stated are settled at the outset. A timetable should then be set for the draft case to be considered by and commented upon by the parties. Rules 41.4 to 41.11 of the Rules of the Court of Session 1994, which describe the procedure that is followed in that jurisdiction, might be thought to provide a useful example of the kind of detail that could be set out in a revised version of the rule. Each step in the procedure is accompanied by its own prescribed timetable: 14 days for the respondent to propose additional questions, 21 days for the tribunal to decide on what questions the case should be stated, 14 days for the preparation of the case, 21 days for amendments to be proposed, 28 days for the case then to be finally settled and so on. Properly used, the stated case procedure can provide a very useful vehicle for bringing issues of law before the court. But it must not be allowed to act as a brake on their prompt determination, as has unfortunately happened in this case.
LORD RODGER OF EARLSFERRY
18. SCA Packaging Ltd (SCA), the appellants, formerly employed the respondent, Ms Elizabeth Boyle. At one time she had experienced a chronic problem with hoarseness due to nodules on her vocal cords. Even after an operation to remove them in 1975, the nodules had returned by 1981. After some months of speech therapy, one disappeared, the other became smaller. In 1992 she was ordered to undergo a strict management regime (sipping water, trying not to raise her voice, resting her voice, exercising, etc) but the nodules which had developed by this time did not go away. So she had a second operation to remove them. After that she continued the same management regime, with the aim of preventing the nodules from recurring. They did not come back and neither did her hoarseness. The relevant history is given more fully in the speech of my noble and learned friend, Baroness Hale of Richmond, to which I gratefully refer.
19. Between October 2001 and November 2002 Ms Boyle lodged three complaints of discrimination, contrary to the Disability Discrimination Act 1995 (the 1995 Act), with the industrial tribunal in Belfast. Those complaints proceeded on the basis that she was a disabled person, by reason of the problem with her voice. She also alleged sex discrimination. Her original disability discrimination complaint related to the threatened removal of a partition separating her working place from a larger, noisier area; the second related to Ms Boyle being told, in about February 2002, that her particular post would not in future exist; the third related to alleged victimisation in May 2002 when she was made redundant.
20. Faced with this burgeoning litigation, the industrial tribunal consolidated Ms Boyles complaints and decided that there should be a pre-hearing review on whether, in her case, there was a disability within the meaning of section 1 of the 1995 Act:
(1) 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.
(2) In this Act disabled person means a person who has a disability.
Section 1 is found in Part I of the Act which is free-standing and deals generally with the concept of disability. By implication, Schedule 1 is also to be seen as belonging to that Part. Parts II to V then go on to make provision in relation to disabled persons, as defined in Part I, in various spheres, such as employment (Part II), education (Part IV) and transport (Part V).
21. What had to be decided in this case was whether Ms Boyle was a disabled person within the meaning of section 1(2) during the period from 27 September 2000 until 19 November 2002 when the acts, which are alleged to have amounted to discrimination under Part II of the Act, are said to have occurred (the relevant period).
22. What the tribunal was going to decide, therefore, was whether Ms Boyle was a disabled person within the meaning of section 1(2) of the 1995 Act during the relevant period. If the tribunal decided that she was not, then that would be the end of the three complaints under the 1995 Act. If it decided that she was, it would have to go on to hear evidence on the substance of the three complaints.
23. Mr Allen QC, who appeared for the Equality and Human Rights Commission, intervening in the absence of any representation for Ms Boyle before the House, described this issue as a threshold issue". I should prefer to say that, since no one can be the victim of discrimination under the 1995 Act unless he or she is a disabled person", whether or not the applicant is a disabled person is a key element in any complaint. In short, the Act applies because a person is disabled - not vice versa. As Mr Allen said, the equivalent questions are not usually contentious in sex discrimination or race discrimination cases. The 1995 Act is different in this respect: the definition of a disabled person for the purposes of the Act is elaborated in Schedule 1 and can give rise to quite complicated and potentially contentious issues. In this case one such issue is only now being finally resolved, many years after Ms Boyles applications were lodged with the industrial tribunal.