LRD guides and handbook May 2013

Law at Work 2013

Chapter 6

Recurring conditions

Recurring conditions are covered by the EA 10, as long as there is evidence that the condition is “likely” to recur so as to have a substantial and adverse effect on the ability to carry out day-to-day activities. For example, someone with rheumatoid arthritis may have adverse effects for a few weeks. If the effects then stop but are likely to recur, they are long-term. The focus is on whether the substantial adverse effect, rather than the impairment itself, is likely to recur (Swift v Chief Constable of Wiltshire Constabulary ([2004] IRLR 540)). In SCA Packaging Limited v Boyleand the Equality and Human Rights Commission [2009] IRLR 747), the Supreme Court decided that “likely” in this context means “could well” recur:

In 1975, Ms Boyle started suffering from hoarseness and vocal nodes. Despite surgery in 1975, the condition recurred in 1981 and 1992. Further surgery and a voice management regime meant the problem did not return. The issue was whether, by 2000, Ms Boyle was disabled. The House of Lords (now Supreme Court) decided that in this context, the term “likely” means “could well happen” and not the harder-to-meet threshold of “more probable than not”.

SCA Packaging Ltd v Boyle and Equality and Human Rights Commission (Intervener) [2009] IRLR 74