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The Claimant had a chronic hoarseness from vocal cord nodules. She underwent several operations in addition to undergoing a strict management regime such as sipping water, not raising her voice etc. Ms Boyle remained for a number of years symptom free whilst keeping to her strict regimen which according to her prevented the return of the problem.The claimant believed that although her problem was in remission she was nevertheless covered by the Disability Discrimination Act 1995 .

Disability is defined in section 1(1) of the Disability Discrimination Act 1995 whereby: “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.”

When employed by SCA Packaging Ltd (SCA) the claimant complained of treatment contrary to the Disability Discrimination Act 1995 such as the threatened removal of a partition separating her working area from a noisier area and victimisation when made redundant.

Ms Boyle believed that SCA should have taken into account her needs and considered reasonable adjustments. SCA argued that the management regime and adjustments were not necessary as the claimant was cured (and therefore not covered by the DDA).

The industrial tribunal claim (northern Ireland) succeeded and SCA appealed to the Court of Appeal [SCA Packaging Ltd v Boyle [2008] NICA 48 where the likelihood of the problem re-emerging in a noisier environment was debated.

McMullin J In Transport Ministry v Simmons [1973] said that "An event which is likely may be an event which is probable but it may also be an event which while not probable could well happen. But it must be more than a mere possibility."

It was noted that predicting medical outcomes is often difficult as some conditions can go into abeyance when treated but can again become serious once the treatment is stopped. It can be impossible to say if illness will recur other than to estimate that in 6(1) of the DDA the word "likely" means "could well happen".

SCA failed in the court and there was an appeal to the House of Lords who agreed with the Court of Appeal that the word “likely” in paragraph 6(1) of Schedule 1 of the Disability Discrimination Act 1995 means “could well happen”.

“An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.”

The Guidance to the Disability Discrimination Act 1995 (DDA 95) stated that, “It is likely that an event will happen if it is more probable than not that it will happen". The House of Lords said that this sentence was wrongly phrased, with the words likely and probable needing to change places to make sense ( becoming “It is probable that an event will happen if it is more likely than not that it will happen").

Probability denotes a degree of likelihood greater than 50% which is what has been accepted by English case law until the present case, the interpretation of 'likely' for the purposes of the DDA being that of Latchman v Reed Business Information Ltd [2002] where the Employment Appeal Tribunal concluded that an effect was not “likely” to recur if the risk of recurrence was about 50%.

So for someone to be considered disabled under the DDA they would need to have a problem with a 51% chance of recurrence. A number of subsequent cases repeated this mantra such as the EAT in Swift v Chief Constable Wiltshire Constabulary [2004], Eastern and Coastal Kent PCT v Grey, UKEAT/0454/08/RN and Cunningham v Ballylaw Foods Limited [2007] NICA 7.

In Cream Holdings Ltd v Banerjee [2004] UKHL 44 [2005] Lord Nicholls of Birkenhead said that “likely” depends upon the context in which it is being used. Lord Nicholls in re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563: “likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm".

The Lords asked, “who can say whether something is more than a 50/50 chance? That is what the doctor in Latchman found so difficult. But assessing whether something is a risk against which sensible precautions should be taken is an exercise we carry out all the time. As Girvan LJ put it in the Court of Appeal, at para 19: in the context of paragraph 6(1) in the disability legislation the word “likely” is used in the sense of “could well happen".

“The real issue in this case is whether it was reasonable to expect the employer to continue to adjust the working environment to take account of Mrs Boyle’s problems with her voice or whether it was not. “ Latchman along with previous court decisions was overuled. Whether a disability is likely to recur is not now to be subject precise prediction.

The decision in this case will encourage those suffering from illnesses e.g. diabetes and epilepsy where the disability is not readily apparent to others than the disabled person himself whilst being medicated. The disability needs to be taken account of even when in abeyance as it could break out at any time.
As such the Lords decided a less exacting test as to what is “likely” than that which has prevailed until now.

The transcript of this case can be found  Here