Definition of disability discrimination extended

Following a case heard in the House of Lords in July 2009 (SCA Packaging Ltd v Boyle, HL), higher education institutions should be aware that the range of people who can be protected by the Disability Discrimination Act (DDA) 1995 (as amended) is broader than the current position outlined in statutory guidance.

Definition of disability prior to the case

In order to be protected under the DDA a person needs to show they have:

'a physical or mental impairment which has substantial and long term adverse effect on his or her ability to carry out normal day to day activities' 

The DDA's statutory code provides guidance on how to interpret the definition of disability under the Act. Section C of the code explores the meaning of long term and fluctuating effects. It outlines that for the purpose of deciding whether a person is disabled under the Act, a long term effect of impairment is one:

• which has lasted at least 12 months; or
• where the total period which it lasts, from the time of first onset is likely to be at least 12 months; or
• which is likely to last for the rest of the life of the person affected.

Prior to the House of Lords pronouncement, determinations of impairments having a long term or fluctuating effect have been decided based on the definition of 'likely' which, according to Section C2 of the statutory code is:

'It is likely that an event will happen if it is more probable than not that it will happen'

Extended provision of disability following the case

The House of Lords decision has moved away from the definition given in the code and now interprets 'likely to happen' as 'could well happen'. In practice this means that it will be easier for individuals to be afforded protection as a disabled person under the DDA.

Action for institutions

Institutions may want to review policies related to staff and student absence to avoid allegations of disability discrimination. Policies will need to build in flexibility to accommodate the reasons behind individual cases of absence.

Further information

• Meaning of 'likely' when assessing worker's disability - Mills & Reeve