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Hiding the stammer
The real extent of a person's stammer is often not apparent. For example the person may avoid difficult situations, or words he cannot say. How does this affect whether the stammer is a 'disability'? New guidance from 1st May 2006 makes it significantly easier for a person using avoidance or concealment to fall within the DDA or Equality Act.
Update: HM Land Registry v Wakefield and Shirlow v Translink are two helpful cases which have yet to be incorporated into the page below.
Outline
| "EqA" or "Equality Act" means the Equality Act 2010 (link to legislation.gov.uk)
The "2011 Guidance" means the official Guidance on matters to be taken into account in determining questions relating to the definition of disability (link to ODI) website, pdf). |
Introduction
Many people who stammer sometimes avoid situations, substitute words etc, to try and avoid stammering openly. Sometimes those who know the person do not realise he stammers at all (a 'covert stammer'). However, avoidance is also very widespread amongst people whose stammer is often overt. See How people hide.
In looking at how hiding your stammer is relevant to whether you have a 'disability', the main part of the statutory test we will be looking at is whether the stammer has a substantial adverse effect on ability to carry out normal day-to-day activities. Bear in mind though that this discussion on hiding your stammer is not really relevant if you have sufficient overt stammering to meet the statutory definition of 'disability' anyway. See 'Substantial' effect on ability?
After a bit of history, I point out that if avoidance is not given due weight in considering whether a person has a 'disability', one could have the very odd situation that a person is more likely to have a 'disability' after speech therapy than he was to have disability before therapy. After therapy he may be speaking more freely but with a more obvious stammer. See Common sense.
2011 Guidance
An example in this Guidance seems to indicate that avoidance strategies - or effects hidden by them - may be taken into account towards determining that a stammer has the required substantial effect (example in para D17). The example mentions various avoidance strategies: avoiding situations where the person believes he will stammer (here phone calls); not speaking so much; substituting words; and inserting extra words or phrases.
Furthermore, para B9 of the 2011 Guidance says that it would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person.
The guidance is not an authoritative statement of law, but must be taken into account by tribunals where relevant.
See 2006 Guidance.
Legal arguments
I then look at the possible legal arguments as to why avoidance/concealment strategies should be seen as contributing to a person who stammers having a 'disability'. Firstly as regards avoiding situations, or avoiding speaking up, the 'substantial' effect can be seen as either the avoidance itself, which is a symptom of the stammer, or as the problems one would have speaking if one did try to speak rather than avoiding. See Avoiding situations, or keeping quiet.
As regards word substitution and use of 'fillers', these possible legal arguments are joined by another, based on EqA Schedule 1 para 5 which allows one to discount measures taken to correct a disability. See Word substitution (and "fillers").
Finally...
Finally, I deal with relevance of Knowledge of the stammer (particularly a listener may not know about a covert stammer); and also why I think a stammer would still be a physical or mental impairment if it is covert, in other words if the person is speaking outwardly fluently - see Covert stammer as 'physical or mental impairment'.
How people hide
Many people who stammer use avoidance and concealment strategies to try and avoid stammering openly, at least some of the time. Often these strategies involve the person not saying what he actually wants to say, and are linked with fear of how the listener will react if he stammers openly. Part of speech and language therapy, if the person is having this, will generally be to encourage him to move away from using these strategies, so as to have greater freedom of expression.
Examples of avoidance and concealment strategies include:
- avoiding situations where the person finds it difficult to speak, for example avoiding phone calls or various social sitatuations
- staying quiet where the person feels he will stammer - eg not saying something he would like to say in a conversation
- scanning ahead for words on which he feels he will stammer and substituting words he can say
- inserting "fillers" - meaningless words or phrases such as "actually", or "I mean", to help avoid stammering.
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Whether or not the person also has an overt stammer, he is likely to have a great deal going on inside: for example, scanning ahead for difficult words and planning how to substitute them, putting in fillers, or just staying quiet or avoiding situations. Even so far as the stammer is not overt, it can have a large effect on the person's life.
'Substantial' effect on ability?
The main part of the definition of 'disability' that avoidance and concealment strategies could impact on is the requirment that the stammer have a substantial adverse effect on one's ability to carry out normal day-to-day activities. As I discuss below, the 2011 Guidance (like the 2006 guidance before it) is helpful to the argument that such strategies can be taken into account towards this requirment being met. There are also various legal arguments for this.
The first point to stress though is that you may well have sufficient overt stammering to meet the test anyway. (More on overt stammering...). This page is only relevant if your stammer as it appears to others is not sufficient to meet the definition of 'disability'.
I will go into the 2011 Guidance and legal arguments shortly, but before that a bit of history and a bit of common sense:
Before 2006 - the Shaughnessy case
Offical guidance dealing particularly with stammering and avoidance was first introduced in 2006, and has been continued into the present 2011 guidance.
Before 2006 we had the case of Shaughnessy v The Lord Advocate, where in 2000 an Employment Tribunal dealt with a largely concealed stammer. The stammer did seem to have had a major effect on the applicant's life. However, the Tribunal found that the stammer was not a disability on the facts, concentrating on how far the stammer had overt effects.
Even before 2006, I very much doubt that another Tribunal to whom the proper arguments were put would have followed this case. In particular the Goodwin case (which I deal with below) does not seem to have been properly addressed. In any event, those drafting the 2006 Guidance were aware of the case, and I think both the 2006 and 2011 Guidance seek to steer tribunals away from the approach taken by in that case.
Common sense
There is a strong policy argument that a person using concealment/avoidance strategies should be treated as having a disability. If tribunals focus on overt effects of stammering, this could have the very odd result that a person is more likely to be 'disabled' after speech therapy than before!
This is because current approaches to speech therapy for stammering encourage a person not to conceal stammering. Speech and language therapists generally encourage their clients to stammer more openly and to go into situations they may have been avoiding till now. More generally, the goals of modern therapy are to enable the person who stammers to communicate freely what they want to say and to reduce sensitivity and negative feelings/reactions to stammering.The law should not be at odds with this. It cannot be right that a person is more likely to be seen as disabled after therapy when he is hopefully expressing himself more freely, albeit with a stammer.
Of course it is appropriate too that a person after therapy who may be stammering more overtly can still be disabled under the Equality Act. If he is speaking with a stammer, he may suffer discrimination which should fall within the legislation.
2011 Guidance
The 2011 Guidance includes an example on stammering which is helpful in taking avoidance/concealment strategies into account. There is also some more general discussion on avoidance strategies. The Guidance it is not an authoritative statement of the law, but tribunals must take it into account where relevant.
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Example in para D17: "...A man has had a stammer since childhood. He does not stammer all the time, but his stammer, particularly in telephone calls, goes 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 avoidance strategies. He tries to avoid making or taking telephone calls where he believes he will stammer, or he does not speak as much during the calls. He sometimes tries to avoid stammering by substituting words, or by inserting extra words or phrases. "In these cases there are substantial adverse effects on the person's ability to carry out normal day-to-day communication activities." Example in para B24: A lady has significant scarring to her face as a result of a bonfire accident. The woman uses skin camouflage to cover the scars as she is very self conscious about her appearance. She avoids large crowds and bright lights including public transport and supermarkets and she does not socialise with people outside her family in case they notice the mark and ask her questions about it. This amounts to a substantial adverse effect... [The example goes on to explain that, in any event, substantial adverse effect is not required to bring a severe disfigurement within the Equality Act] |
Example in para D17 - phone calls
The helpful example in para D17 of the guidance - see box - is close to one which appeared in the 2006 guidance, which was adapted from wording suggested by BSA. It talks about how the effects of stammering may be hidden - avoiding phone calls, not saying so much, and substituting or inserting words or phrases.
The concluding paragraph seems to say that the stammer should be regarded as having a substantial adverse effect nothwithstanding how it is often hidden by these strategies.
There is no reason to think that this applies only to phone calls. The example just uses phone calls to illustrate the point.
Example in para B24 - on avoidance due to disfigurement
This example, quoted in the box, is relevant by analogy. It talks of there being a substantial effect where a woman with significant facial scarring avoids numerous social situations, which some people who stammer also do.
Avoidance strategies - paragraphs B7-B9
Though not referring particularly to stammering, these paragraphs in the 2011 Guidance have general discussion of using avoidance.
The paragraphs are not easy to understand. For example para B7 says "In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability." But para B9 says "It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person."
It is welcome that para B9 mentions substantial social embarrassment as something which may lead a person to avoid - this is very relevant to stammering. And it is this same para B9 which says it would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person. But what the guidance means overall is difficult to fathom.
The general thrust of these paragraphs is that account should be taken of how far a person can reasonably be expected to modify his or her behaviour, "for example by use of a coping or avoidance strategy", to prevent or reduce the effects of an impairment. An example indicates, for example that it would be reasonable to expect a person who has chronic back pain to avoid extreme activities such as skiing, but it would not be reasonable to expect the person to give up, or modify, more normal activities that might exacerbate the symptoms; such as shopping, or using public transport. To my mind the paragraphs confuse two issues:
- Yes one can see how the skiing example might make sense, because one is looking at an 'extreme' activity which has knock-on effects on ability to do other activities. I don't know if it's right in law, but one can see why the guidance might want to say that if the reason you can't go shopping (a normal day-to-day activity) is that you did your back in going skiiing, despite knowing that's the likely result, then that doesn't count as a substantial effect on normal day-to-day activities
- This is quite different to where the activity you might be expected to avoid is itself a normal day-to-day activity (eg making phone calls, socialising), and the question is how far the impairment affects one's ability to do that avoided activity. This is the situation relevant for stammering. I can see no basis in the Equality Act for saying that if it's 'reasonable' to avoid a particular 'normal day-to-day' activity, then that activity somehow doesn't count. Also bear in mind that one's ability to do something can be affected even if one avoids it (see below Effect in terms of how the person would speak if they did not avoid). For more on these issues in the context of an example which appeared in the 2006 guidance but has now been deleted following submissions from BSA, see Hiding the stammer - para B8 example.
Avoiding situations, or keeping quiet
The person who stammers may avoid particular situations where he feels he would stammer, for example phone calls, social situations. He may also fail to speak up where he would really like to, for example in a group conversation.
Both avoiding a particular situation (phone calls) and staying more quiet than one otherwise would are included in the para D17 example in the 2011 Guidance This example does seem to say that these - or effects hidden by them - can be relevant to a stammer having a substantial effect on normal day-to-day activities. Tribunals must take the 2011 Guidance (including this example) into account where relevant, but it is not an authoritative statement of the law.
What then is the legal argument for saying that avoiding situations and staying quiet are relevant in this way? There are at least two legal bases for arguing that there can be a substantial effect on ability to carry out normal day-to-day activities here. I think either basis is valid, and indeed one could argue both.
a) 'Effect' as avoidance itself,
The first approach is to say - as I think many speech and language therapists who specialise in stammering would say - that a stammer is not just dysfluency but a set of symptoms, and that avoidance/concealment is itself one of these symptoms. On this basis, one can argue that the stammer, through its symptom 'avoidance', restricts a person's ability to carry out conversations etc. Provided the effect is 'substantial' (more than minor or trivial) as regards normal day-to-day activities, as it very often would be, one can say this meets the statutory test.
I deal on a separate page with a possible counter-argument raised by one tribunal - see Argument that avoidance is no different from being extremely shy.
Even if one does not view avoidance as a symptom of the stammer, it is likely that avoidance by reason of substantial social embarrassment (for example) should still be taken into account as an effect of the stammer. Paragraph B9 of the 2011 Guidance specifically mentions avoidance due to substantial social embarrassment. Also the example at paragraph B24 of the 2011 Guidance (quoted above) is of a woman with a disfigurement who avoids large crowds, socialising with people outside her family etc because of her self-consciousness. It considers this to be a substantial adverse effect. Avoidance is not a symptom of the impairment here, but the 2011 Guidance indicates that it would still count.
It is worth mentioning too that the Appendix to the 2010 Guidance lists as something it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities: "Persistently wanting to avoid people or significant difficulty taking part in normal social interaction or forming social relationships, for example because of a mental health condition or disorder".
b) Effect in terms of how the person would speak if they did not avoid
This argument sounds a bit obscure but is actually very simple. The point is that the statutory test looks at whether there is a substantial adverse effect on one's ability to carry out normal day-to-day activities. Even though you avoid speaking on the phone, for example, your stammer can still affect your ability to speak on the phone. (To take an analogy, I'm not very good at drawing - I don't have much ability in it, and that is so even though I haven't actually drawn for years.) Indeed if you avoid speaking on the phone, you probably do it precisely because your stammer does affect your ability to do so.
This argument has strong backing from the Employment Appeal Tribunal in Goodwin v Patent Office:
"In order to constitute an adverse effect it is not the doing of the acts which is the focus of attention but rather the ability to do (or not to do) the acts [my emphasis]. Experience shows that disabled people often adjust their lives and circumstances to enable them to cope for themselves. Thus, a person whose capacity to communicate through normal speech was obviously impaired might well choose, more or less voluntarily, to live on their own. If one asked such a person whether they managed to carry on their daily lives without undue problems, the answer might well be "Yes;" yet their ability to lead a "normal" life had obviously been impaired. Such a person would be unable to communicate through speech and the ability to communicate through speech is obviously a capacity which is needed for carrying out normal day-to-day activities, whether at work or home. If asked whether they could use the telephone, or ask for directions or which bus to take, the answer would be "No". Those might be regarded as day-to-day activities contemplated by the legislation and that person's ability to carry them out would clearly be regarded as adversely affected."
So say you avoid phone calls, but that if you did speak on the phone your stammer would have a substantial effect on your speech ('substantial' meaning only 'more than minor or trivial'). This should count as a 'substantial effect' on your ability to carry out normal day-to-day activities. The stammer affects your 'ability' to speak on the phone, even though you tend to avoid the phone because you find it so difficult. The same applies if you stay quiet or say less in a conversation. The Employment Tribunal in Shaughnessy v The Lord Advocate did not seem to consider this aspect of Goodwin, and - quite apart from the 2011 Guidance - this is a key reason I think the decision would not be followed.
Two requirements to be met by a person who stammers under this argument - and which I imagine normally would be met - are:
- the activites must be normal day-to-day, so for example avoiding socialising or speaking on the phone should count, but probably not giving a speech in Wembley Stadium; and
- it must be the case that the person would actually stammer substantially ('substantial' meaning only 'more than minor or trivial') if he did go into the normal day-to-day situations avoided, eg phone calls, or if he did speak up in normal day-to-day situations where he keeps quiet.
Word substitution (and "fillers")
A person who stammers will often avoid words on which he feels he will stammer, and substitute other words which he feels he can say.
This may be imperceptible to others - a person who stammers may develop a rich vocabulary through practice in substituting words. Or the person may end up saying some rather odd things. I once picked up the phone when I could see it was our very proper senior partner calling and said "Hi", because I couldn't get anything else out. Jonathan Miller who had a stammer tells how he got on a bus wanting to go to Marble Arch and said: "Here's the fare for the arch that is made of marble". (He had a particular problem with m's, the first letter of his name.)
People who stammer may also insert "fillers", meaningless words or phrases such as "actually", or "I mean", to help them avoid stammering. Or they may get a run up at a difficult word - eg a person who stammers often finds their name difficult, so rather than just saying "Allan" he might put a phrase before to help get it out: "My name is Allan."
Can this count towards a stammer having a substantial effect on ability to carry on normal day-to-day activties.
Guidance
It seems likely that it can, according to the 2011 Guidance. Both substituting words and inserting words or phrases (fillers, or getting a run up at saying a difficult word such as one's name) are specifically mentioned in the para D17 example. This example does seem to say that these - or effects hidden by them - are relevant in a stammer having a substantial effect on normal day-to-day activities. Though it is not an authoritative statement of the law, tribunals must take the 2011 Guidance (including this example) into account where relevant.
That is the guidance, but what are the legal arguments for saying avoiding situations and substituting/inserting words or phrases should be relevant to a stammer having a substantial effect?
Legal argument 1): (a) and (b) above
There is an argument for word subsitution to be taken into account under arguments (a) and/or (b) discussed above. The question under the statutory definition of disability is whether the effect on one's ability to carry out normal day-to-day activities is substantial. I would argue that what is normal, day-to-day for most people is being able to say the words they want, not having to switch words all the time.
Under argument (a) one would then argue that avoidance/concealment through word substitution (or using fillers etc) is one of the symptoms of the stammer, and if the effect on the person's ability to say the words he really wants is 'substantial' ('more than minor or trivial') then that is a substantial effect on ability to carry out normal day-to-day activities.
Under argument (b) (with the Goodwin case) it could be argued that if a person would stammer if he were not switching words etc, that is an effect on his ability to carry out normal day-to-day activities, ie to speak the words he wants. If that stammer would be substantial ('more than minor or trivial') if he were not switching words or using fillers, then it can be argued that the statutory test is met.
Legal argument 2): Schedule 1 para 5
Alternatively, I believe one could strongly argue for same result under under Equality Act Schedule 1 para 5, discussed elsewhere. Schedule 1 para 5 allows one to discount measures being taken to correct a disability. If Schedule 1 para 5 applies, the stammer has to be looked at as it would be if you weren't substituting words or inserting fillers. Again, it is not clear whether or not this argument will be accepted, but my view is that it should be.
Legal argument 3): Otherwise
If those arguments did not succeed: word substitution may or may not impact significantly on one's ability to communicate meaning, so does it count as an "adverse effect"? The person may be using a rich and varied vocabulary because of his avoiding. But he may also be saying some rather odd things, as in my "Hi" example and the Jonathan Miller example above. This type of thing may well be an adverse effect, but it also needs to be substantial (more than minor or trivial).
Knowledge of stammer - possible defence by employer etc
Where a person has a covert stammer other people may not be aware of it, or of its extent.
For some types of discrimination, the employer or service provider has a defence if it did not know and could not reasonably be expected to know of the disability. This will depend on the facts and what type of discrimination is being claimed. See particularly
- in relation to discimination arising from disability, the knowledge requirement; and
- the lack of knowledge defence in the reasonable adjustment rules.
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© Allan Tyrer 1999-2011
Last updated 16th July, 2011
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