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Latent health conditions

Posted on 29th July 2009
Case law

A latent health condition that may recur or is kept under control by medication may nevertheless mean an employee is a "disabled person" under the Disability Discrimination Act 1995.

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Julie Temple Julie
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likely means could well happen

SCA Packaging Ltd v Boyle

The decision

This case is very important because it improves protection of employees who suffer from a mental or physical health problem which can vary in severity over time and when it is likely this condition could become substantial again in the future.

This case was about how to interpret the definition of "disability" and the House of Lords decision has widened the test so that more employees will be able to argue they should have the protection of the Disability Discrimination Act 1995. The test for whether an employee is a "disabled person" depends in certain circumstances on the definition of "likely".

The definition of "likely" was previously 'probable'. Employees needed to prove it was 'more likely than not' (i.e. 51% likely). The House of Lords decision held that "likely" simply means 'could well happen'. This is a much lower threshold.

In practice

This decision means that employers must take care when dealing with employees who have latent health conditions which may recur or are kept under control by medication. They now have the same protection as an employee who has a condition which is more stable and which obviously is a disability.

If an employee has an underlying condition which fluctuates in the severity of its effects, the fact that they are not currently substantial does not matter if the effects could well become substantial in the future.

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