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These pages relate only to the United Kingdom.
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| Home | Overview | Disability | Employment | Services | Education | Benefits | Business | Advice | Links | More... |
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These pages relate only to the United Kingdom.
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This page deals with possible legal arguments that any stammer counts as a 'disability' within the DDA - unless it has no effect on fluency in normal day-to-day activities. These arguments are significantly strengthened by the 2006 Guidance, but we will have to see what view tribunals take of the issue.
| The "2006 Guidance" means the Guidance on matters to be taken into account in determining questions relating to the definition of disability which took effect from 1st May 2006, on the DRC's 'Guidance' web page. For discrimination which occured before 1st May 2006, see my previous web page. |
The argument is basically that in the case of a stammer, any effect on fluency in normal-day-to-day activities will be more than minor or trivial, since any stammer will go beyond the occasional lapses of fluency which anyone may have. There is a shortish outline of the argument at 'Is any stammer covered' on the 'Substantial effect' page.
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Para B1: "The requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial Example in para D25(1): "A man has had a stammer since childhood. He does not stammer all the time, but his stammer can appear, particularly in telephone calls, to go beyond the occasional lapses in fluency found in the speech of people who do not have the impairment. However, this effect can often be hidden by his coping strategy. He may try to avoid telephone calls where he believes he will stammer, or he may not speak as much during telephone calls. He may sometimes try to avoid stammering by substituting words, or by inserting extra words or phrases. ...[Two non-stammering examples follow]... "In these cases it would be reasonable to regard these effects as substantial adverse effects." |
Para B1 of the 2006 Guidance says that the requirement that there be a substantial effect "reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people" (see box). This test was used in Paterson v Commissioner of Police of the Metropolis (2007).
Anyone can have some 'dysfluencies' in getting their words out, for example when they are temporarily upset, embarrassed, confused, in a hurry. This is not intended to be a 'disability'.
However, the condition of 'stammering' is something beyond the dysfluencies which occur to most people. It occurs only in about 1% of the adult population. There may be disagreement about precisely what distinguishes stammering from 'normal' speech, for example how far it has to do just with dysfluencies, or with the extra 'effort' with which people who stammer tend to speak - and there may always be difficult borderline cases. However, most of us think we can recognise stammering, at least when the person is not taking steps to hide it. It is something beyond the normal minor dysfluencies one finds in the speech of most people.
In particular, people who stammer sometimes simply cannot get the word out, or sometimes have to use a special speech technique to get the word out. This is not the kind of dysfluency which non-stammerers have - for example when a person is unsure of how to say what he wants and maybe stumbles while trying to sort it out.
It can therefore be argued that the effects of a stammer on fluency should necessarily be seen as substantial, because they do go beyond people's normal dysfluencies, even if they are 'minor'. This should be sufficient to bring the stammer within the DDA, assuming the effects are in normal day-to-day activities.
This position now seems to be reflected in the para D25(1) example (see box), which says that the person's "stammer can appear, particularly in telephone calls, to go beyond the occasional lapses in fluency found in the speech of people who do not have the impairment." The example says that it would be reasonable to regard the effects (which may also be hidden) as substantial adverse effects.
Is it sufficient that the stammer goes beyond the occasional lapses of fluency anyone may have, or does there also need to be the avoidance behaviour as described in the example? Very often a person who stammers will have avoidance behaviour too. Even if he does not though, the example does seem to talk in terms that the effects (stammering beyond normal occasional lapses) sometimes hidden by the avoidance behaviour are substantial adverse effects. This would lead one to think that the avoidance is not a precondition to there being a substantial adverse effect - the example is simply saying that avoidance does not get in the way of (hidden) effects going beyond normal lapses of fluency being a substantial adverse effect.
This example is therefore very helpful to the argument that any stammer with some effect on fluency in a normal day-to-day activity can fall within the DDA. One would expect any stammer to go beyond the occasional lapses of fluency which 'fluent' people may have.
Apart from the arguments above, para B1 says that a 'substantial' effect is one which is more than 'minor' or 'trivial'. The Employment Appeal Tribunal accepted this in Goodwin v Patent Office. This is helpful in giving "trivial" as an alternative word to minor. It is not easy to contemplate a stammering condition that is 'trivial'.
However, does the argument that any effects of a stammer on fluency should be seen as 'substantial' fit with the bullet point example on 'minor' speech impediments'. Para D25(1) of the 2006 Guidance says it would not be reasonable to regard as having a substantial effect:
"inability to articulate fluently due to a lisp or other minor speech impediment"
The good news is that this is a significant improvement on the equivalent example in the1996 guidance. Para C19(i) of this said it would not be reasonable to regard "inability to articulate fluently due to a minor stutter, lisp or speech impediment" as having a substantial effect.
So the 1996 Guidance said a minor stutter was not a 'disability'. This statement has disappeared in the 2006 Guidance. One might well think that no longer saying a minor stutter can't be a disability, combined with the insertion of the major para D25(1) example on stammering and phone calls, is a shift to saying that basically any effect a stammer has on fluency is 'substantial'.
However, the bad news is that we are left with the general wording in this bullet point example, about inability to articulate fluently due to a minor speech impediment not being a substantial effect. On the face of it this could include a 'minor' stammer. It is difficult to know what this wording means though. The 'lead' disorder given is a lisp, which one would think does not affect fluency but rather pronunciation. This implies that the word 'articulate' is at least as important, and possibly more important, than 'fluently'. The implication of " or other minor speech impediment" may be that it is intended to catch disorders broadly similar to a lisp.
The bullet point example is difficult to understand and I would hope that, at least as regards stammering, tribunals would focus on the para D25(1) example about stammering and phone calls which is rather clearer. However, we will have to see what view the tribunals take.
Even if a tribunal did give weight to this bullet point example as regards stammering, remember that the test would still be only whether effects of the stammer were 'more than minor or trivial', that the tribunal would need to take into account the phone call example, and that hidden as well as overt effects should be relevant.
Article 14 of the European Convention on Human Rights covers discrimination based on "any ground", such as sex, race etc "or other status", and it seems to cover disability.
It is very possible that a person who clinically has a stammer and suffers discrimination because of it is protected by Article 14, even if its effects on normal day-to-day activities are not "substantial". It could be argued that the person is discriminated against on the ground of having a stammer, and that is 'any other status'.
Generally 'other status' has been interpreted widely in case law. In R.M. v UK (Appl. No. 22761/93, see European Court of Human Rights website) the UK Government seems not to have contested that HIV/AIDS fell within Article14. Also it appears to make more sense than saying the 'status' on the basis of which discrimination occurs is having an impairment which has a more than minor or trivial effect in normal day-to-day activities. (There is more that could be said here, particularly on cases giving a wide meaning to 'other status' - I will expand on this when I can.)
Assuming this interpretation of Article 14 is correct, then in areas to which Art 14 applies the DDA should where possible be interpreted so as to be consistent with it. Article 14 only applies to matters falling within the ambit of another Convention right. However, the Convention and the DDA overlap in the areas of education and the courts, for example. The DDA rules on education, and on provision of services so far as they relate to the courts - including in both cases the 'disability' definition - should be interpreted consistently with Article 14.
Some other areas such as employment are outside the Convention. Even in fields such as education, some discrimination within the DDA may not fall within the Convention - for example it is not clear how far Article14 goes beyond direct discrimination. As regards those cases, it needs to be considered whether there can be an 'overflow effect', on the basis that it would be odd to give 'disability' different meanings for different parts of the DDA.
More on Human Rights Act and stammering...
The Directive talks of discrimination on the ground of "disability", without defining the term. It has no exclusion for minor disabilities. The issue is therefore whether the term 'disability' inherently excludes some or all 'minor' conditions.
It will be for the European Court of Justice to decide minimum standards of what must be treated as a 'disability'. So far the ECJ has considered the meaning of 'disability' in the case of Navas v Eurest Colectividades SA (2006) - I have not yet considered what implications that decision has.
If the European Court of Justice interprets 'disability' under the directive more widely than under UK practice, then at least in the DDA's application to employment:
More on EU Framework Employment Directive.
From a policy point of view, one might argue that anyone who stammers and faces discrimination because of that should be within the DDA. If a stammer is enough to cause discrimination, it should be enough to fall within the DDA.
Furthermore, say a candidate is turned down because he stammers mildly at an interview. Compared with someone who stammers more severely, there is less likely to be a justification for turning him down, but he may have more difficulty getting within the DDA because his stammer is only mild.
All this is not really relevant to arguments on what is the current legal position. However, for the longer term, the Disability Rights Commission has recommended that the DDA definition of 'disability' should be broadened so that the law provides protection against discrimination on the grounds of impairment, regardless of the level or type of impairment. This is not as yet accepted by the Government. More on possible changes to definition...
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© Allan Tyrer 1999-2007
Last updated 5th August, 2007
Is the stammer a disability?
Disability? - FAQ
Definition
'Impairment'
'Substantial effect'
'Normal day-to-day'
Hiding the stammer
Therapy
Longer-term
Old Green Card
Any stammer covered?
2006 Guidance
