Disability? - FAQ
This page deals with whether your stammer counts as a 'disability' within the DDA. It is fairly easy for a stammer to come within the DDA. However if not, you cannot claim under the DDA. Assuming the stammer does count as a disability, the legislation gives you various rights, including in respect of employment, goods and services and education.
For discrimination which occured before 1st May 2006, see this older page on meaning of disability.
Does a stammer count as a disability?
What is a 'substantial effect'?
What changed on 1st May, 2006?
What if I only stammer substantially in some situations?
Is there still a 'substantial effect' if I hide my stammer?
What if my stammer depends on tiredness, stress etc?
What if I use speech techniques?
What if I use a DAF or other device?
What if my stammer used to be more severe?
Do I register as disabled?
"I don't like to be seen as disabled."
Are there any cases on stammering?
Changes
Further information
Does a stammer count as a 'disability'?
- The DDA defines a disability as a physical or mental impairment which has a substantial and long-term adverse effect on one's ability to carry out normal day-to-day activities.
- It seems clear that a stammer is a 'physical or mental impairment' (see here for more detail). One does not have to decide whether it is 'physical' or 'mental', but a tribunal in Blacker considered a 'speech impediment' to be a 'physical' impairment. It would be prudent to plead both alternatives.
- Broadly, long-term means at least twelve months.
- On this basis, a stammer is covered in practice if it has a substantial adverse effect on one's ability to carry out normal day-to-day activities. This is not a difficult test to meet.
- This website focuses on the common kind of stammering which starts in early childhood. Much less common is Stammering which starts in adulthood (link to BSA website), and that will give rise to further legal issues, including whether the effect has lasted or is likely to last at least 12 months.
What is a substantial effect?
- 'Substantial' is interpreted only as "more than minor or trivial", so the threshhold is a low one.
- There is a possible argument that any stammer is a disability (unless it has no effect on fluency in normal day-to-day activities). In particular, one example in official guidance talks about a person whose stammer goes beyond the occasional lapses in fluency found in speech of non-stammerers. It is not clear whether or not this is the test, so that any stammer should be covered. However, it certainly seems that the threshhold is low.
- Official guidance says that it would be reasonable to regard as having a substantial adverse effect "taking longer than someone who does not have an impairment to say things." This does not necessarily mean a tribunal must regard it as a substantial effect, but that it would be 'reasonable' to do so.
- There are likely to be substantial effects even if you hide your stammer.
- There may perhaps be substantial effects where your stammer is not evident because of speech techniques. This applies more clearly if you use an electronic fluency aid (eg DAF).
- A stammer which no longer has a substantial adverse effect is treated as continuing to have one if such an effect could well re-occur in future - see Longer-term variations.
- There must be a substantial effect on 'normal day-to-day activities' - see below What if I only stammer substantially in some situations?
- In various tribunal cases it has been accepted without argument that the person's stammer had a substantial effect.
- Even if a stammer does not actually have a substantial effect on normal day-to-day activities, as regards direct discrimination or harassment in an employment context it can be argued (but the position is not clear) that it is enough that the employer perceives it to have that effect (see perceived disability).
What changed on 1st May, 2006?
- Government guidance on the meaning of disability changed on 1st May 2006. The guidance is not binding but courts must have regard to it where relevant. This page you are reading and the more detailed pages linked off it are based on the new guidance.
- The 2006 guidance includes two examples specifically on stammering, and is more helpful than the old guidance in making clear that a stammer may fall within the DDA even though many of its effects are hidden, and even though it is not severe.
- For discrimination which occured before 1st May 2006, see this older page on meaning of disability. Bear in mind that the legal definition and caselaw were largely the same before May 2006, even though the Government guidance was different.
What if I only stammer substantially in some situations?
- It depends on the situations. You look at whether the stammer has a substantial effect on your ability to carry out 'normal day-to-day activities'.
- In deciding what is a 'normal day-to-day activity', UK Guidance says that one takes account of how far the activity is normal for a large number of people, and carried out by people on a daily or frequent and fairly regular basis (but the Paterson case below means that the activities included probably go well beyond that). The term does not include activities which are normal only for a particular person or small group of people.
- 'Normal day-to-day activities' are likely to include, for example, having a conversation, using the telephone, or taking part in social activities.
- Both home and work activities are relevant so far as they are 'normal day-to day activities'. This applies even if the discrimination is just because of activities at work.
- 'Normal day-to-day activities' is likely to be significantly wider than is implied by the phrase itself and by UK guidance. In Paterson v Commissioner of Police of the Metropolis a high pressure exam for promotion was held to be a normal day-to-day activity. The court there said it was bound by a European court case which focuses on whether the impairment hinders participation in professional life. On the basis of the Paterson case, perhaps even presentations, interviews, oral assessments etc can be 'normal day-to day activities'.
- It is not absolutely clear whether a substantial stammer in only one normal day-to-day activity would be enough. In any event, effects of a stammer would most likely extend over several activities, especially as these effects need only be 'more than minor or trivial' and are not limited to overt stammering.
- The tribunal must focus on what you cannot do, or do only with difficulty, rather than what you can do.
Is there still a 'substantial effect' if I hide my stammer?
- The amount you actually stammer may well be sufficient on its own to be a disability, especially as it only needs to be more than 'minor or trivial'.
- In addition, though, there is a great deal of potential for the kind of things people do to hide their stammer - or the stammering effects hidden by them - to count as an effect of a stammer. These could include word substitution, avoiding phone calls, or various other things. So you are very likely not limited to looking at how much you stammer openly.
- This is helped by a specific example in the 2006 Guidance, of a person who stammers using various concealment and avoidance strategies as regards phone calls. Another example in the guidance muddies the waters somewhat, but hopefully should not affect the basic position.
- In Wakefield v HM Land Registry (though reversed on appeal on other grounds) the tribunal recognised how significant an effect the covert symptoms of stammering may have, such as making interview answers appear to be shallow. In the light also of the 2006 guidance, I cannot see now that a tribunal would follow the earlier decision of Shaughnessy v The Lord Advocate in which a concealed stammer was held not to be a 'disability'.
- It should be possible to take avoidance/concealment into account even as the only 'substantial adverse effect' of a stammer, if the person has a 'covert' stammer so that they appear to be fluent.
What if my stammer depends on tiredness, stress etc?
- The guidance acknowledges that whether adverse effects are substantial may depend on environmental factors such as tiredness and stress.
- In this event, the extent to which these factors are likely to exacerbate the effects should be considered.
- Remember that if you commonly stammer substantially in certain normal day-to-day situations anyway, you are likely to be covered anyway.
What if I use speech techniques?
- It is very possible that you look at how the stammer 'could well be' if you weren't using the techniques (e.g. block modification, costal breathing).
- However, this rule and its extent are not totally clear. For example does it also apply to techniques you have made up yourself, or to techniques which do not come from therapy with a qualified professional? I would argue yes it does.
What if I use a DAF or other device?
- You almost certainly look at how the stammer would 'could well be' if you weren't using a DAF or FAF device or masker to speak fluently.
What if my stammer used to be more severe?
- If your stammer used to have a substantial adverse effect on normal day-to-day activities but it doesn't now, you are still covered:
- if stammering having a substantial adverse effect on normal day-to-day activities could well re-occur: or
- you may be protected under the "past disability" rules.
Do I register as disabled?
- You no longer 'register as disabled' to have rights under the DDA. You just look at whether you are 'disabled' under the DDA definition.
- People who held 'Green Cards' in 1995 and 1996 under the pre-DDA legislation may have a 'past disability' within the DDA even if they do not meet the DDA definition.
"I don't like to be seen as disabled."
- The DDA does apply to 'disabled' people as defined, so if you want to rely on the DDA you do need to say you are disabled within the meaning of the DDA.
- Remember though that the term 'disabled' as defined for the purposes of the DDA goes beyond what many people would see as disabled in the normal sense. For example, it can include back problems if they last for more than a year. It is a statutory definition to decide who does and who doesn't have rights under the DDA.
- I say more about seeing yourself as 'disabled' or not at Reluctance to be seen as 'disabled'.
Are there any cases on stammering?
- The only tribunal decisions I know of specifically on stammering under the DDA are:
- Wakefield v HM Land Registry (December 2008) - an employment tribunal acknowledged the significant effect that covert symptoms of stammering may have. The decision as a whole has been reversed on appeal, but not on that ground. The case refers to previous proceedings in which the applicant succeeded in showing that his stammer was a 'disability' - this had been disputed by the employer.
- Shirlow v Translink (2007/8) - an existing employee failed a 'competence-based interview' as he did not provide enough examples and evidence of his competencies. The tribunal held that his stammer was a disability. However, there was no breach of the duty to make reasonable adjustments.
- Shaughnessy v The Lord Advocate: a stammer which was largely concealed was held to be too minor to be a 'disability. However, this has been superseded by the 2006 Guidance on definition of disability.
- Blacker v Servisair (UK) Ltd: the tribunal held a 'speech impediment' to be a 'physical impairment'. Since the applicant's impairment undisputedly had the required long term and substantial effects, he was disabled within the DDA. In fact the tribunal does not say whether the 'speech impediment' was a stammer.
- Y v Bradford Council, Y v Calderdale Council, Alderson v Walkers Snack Foods and Whittick v British School of Motoring - in all four cases it was conceded by the other party that the person's stammer was a disability within the DDA. The cases are not authority on the meaning of 'disability', partly because the point was conceded and so did not fall to be decided by the tribunal. Even so, it is encouraging to have these cases where it was acknowleged that a particular person's stammer was a disability within the DDA. Only in the two Y cases did the claims as a whole succeed.
- Heatherwood & Wrexham Park Hospitals Trust v Beer (June 2006): not about developmental stammering, but a mental impairment of which a prominent symptom was stuttering was found to be a disability.
- Townsend v Office for National Statistics (July 2004): the Employment Appeal Tribunal reports that at a preliminary hearing it was determined that, because of his stammer, the applicant was at all material times a person with a disability for the purposes of the DDA. However, I have not seen the decision from the preliminary hearing.
- Spillet v Tesco Stores Ltd (Feb 2006): claim to have been turned down for a job as a wages clerk because of a stammer. The appeal was on a procedural point, and so does not determine whether she had a disability - which was a disputed point.
- There are a few examples of cases settled out of court on the employment and goods and services pages.
- There are numerous legal decisions on disabilities other than stammering but which are relevant in various ways. I refer to many of these where appropriate on the website.
Changes
- The Disability Rights Commission recommended that the DDA definition of 'disability' should be changed, broadening it so that the law provides protection against discrimination on the grounds of impairment, without having to show its effects are substantial or long term. However, the Government has rejected this recommendation. More on recommended change to definition...
Further information
- Sources of help and advice - Equality and Human Rights Commission helpline, BSA, advice agencies etc
- External website:.
- Northern Ireland - different official guidance applies.
- For web links generally on stammering and disability discrimination see the links page.
Top
Homepage | DDA in outline | Meaning of "disability" | Employment | Goods and services | Education | Human Rights Act | Proposed changes | Social security | Advice | Links | What's new | Site index | Privacy (cookies) | Disclaimer
© Allan Tyrer 1999-2009
Last updated 15th July, 2009
