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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 effect 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.

Update: Wakefield v HM Land Registry (July 2007, under appeal) is a helpful case in which the tribunal recognised how significant an effect the covert symptoms of stammering may have, such as making interview answers appear to be shallow. It has yet to be incorporated into the page below.

Outline

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.
This is an outline of the rest of this page, with links to each section.

Introduction

Many people who stammer sometimes avoid situations, substitute words etc, to try and avoid stammering openly. Sometimes those who know an individual 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 before it.  After therapy he may be speaking more freely but with a more obvious stammer. See Common sense.

2006 Guidance

From May 2006, an example in this revised 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 D25(1)). 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 B8 of the 2006 Guidance says that it would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person. Another example on stammering at para B8 of the Guidance is unclear and unsatisfactory, but will hopefully not be seen as altering the above position.

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 DDA Schedule 1 para 6 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:

Interiorised/covert stammering leaflet - on BSA website.
Probably most people using avoidance and concealment still stammer overtly to a significant extent. However, in some cases avoidance and concealment strategies give rise to a 'covert stammer', also known as 'interiorised stammering'. Here the person speaks fluently (or their disfluency is relatively trivial) but only because they are using these strategies to hide their stammer. Almost everyone may relate to the person as fluent, not knowing about the stammer.

Whether or not the person also has an overt stammer, he may have a great deal going on internally in terms of, for example, anticipating and substituting words he cannot say, 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 2006 Guidance is helpful in arguing that such strategies can be taken into account towards this requirment being met, and there are 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, particularly as the 2006 Guidance no longer says that a 'minor stammer' does not count as a disability. (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 2006 Guidance and legal arguments shortly, but before that a bit of history and a bit of common sense:

Before 2006 - the Shaughnessy case

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 this Guidance seeks 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 DDA. If he is speaking with a stammer, he may suffer discrimination which should fall within the DDA.

2006 Guidance

The 2006 Guidance, and particularly two examples in it, are helpful in taking avoidance/concealment strategies into account - though one of these examples is unsatisfactory. This Guidance it is not an authoritative statement of the law, but tribunals must take it into account where relevant.

Extracts from 2006 Guidance:

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 B8: "Account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment; because of a loss of energy and motivation. It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person..."

Example in para B8: "In order to manage her condition, a woman with a persistent stammer uses coping strategies, such as avoiding using the telephone, not giving verbal instructions at work, limiting social contact outside her immediate family, and avoiding challenging situations with service providers. As a consequence, it may not be readily obvious that she has an impairment which adversely affects her ability to carry out normal day-to-day activities.

"In determining whether she meets the definition of disability, consideration should be given to the extent to which it is reasonable to expect her to place such restrictions on her working and domestic life."
Example in para D25(1) - phone calls

The example in para D25(1) of the guidance - see box - is adapted from wording suggested by BSA, and is very helpful. 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 it would be reasonable to see the stammer as having a substantial adverse effect even so far as effects are hidden by these strategies. The example does also talk about some overt effects, but since more than half the example is taken up with how the stammer is hidden it would be very odd for the statement at the end that this is a substantial adverse effect not to apply also to the hidden aspects described.

There is no reason to think that this applies only to phone calls. The example just uses phone calls to illustrate the point.

It is rather misleading that the example uses the term 'coping strategy'. These are avoidance or concealment strategies.

Text of para B8

The text of para B8 is also helpful.

Most importantly, it says "It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person." This is consistent with the para D25(1) example above.

The text is also helpful in saying that account should be taken of where a person avoids doing things which cause substantial social embarrassment. This is can clearly be applicable to people who stammer. (In fact it was suggested by the British Stammering Association.) There is probably an implied 'or' before 'because of a loss of energy..." There was an 'or' in the consultation draft, and it does not make sense for the 'because..' clause to apply to avoidance due to pain, social embarrassment etc.

Example in para B8

This example, though positive in some ways, unfortunately confuses the position. See box for the full text. The example talks about a woman who stammers and, for example, avoids phone calls and limits social contact outside her immediate family.

The example says: "As a consequence, it may not be readily obvious that she has an impairment which adversely affects her ability to carry out normal day-to-day activities." This is helpful acknowledging that substantial effects on ability to carry out normal day-to-day activities may be hidden.

The example continues: "In determining whether she meets the definition of disability, consideration should be given to the extent to which it is reasonable to expect her to place such restrictions on her working and domestic life." Unlike most of the examples in the 2006 Guidance, this conclusion leaves one unclear as to what the example means. It does not say in what way account should be taken of this.

The sentence may imply that effects on a situation one avoids (or even does not avoid?) are not relevant if it is reasonable to restrict one's life by avoiding it. If so, I find that suggestion amazing and certainly cannot see any legal justification for it. Also it is not easy to reconcile with the text of para B8 which says: "It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person."

Basically, I have yet to find anyone who can explain the example. It was not in the consultation draft of the Guidance, and would almost certainly been changed had people had a chance to comment on it. While the example is helpful in acknowledging how a stammer can have hidden effects, I suspect (and hope) that its final sentence will not be found useful by tribunals and courts.

More on problems with the 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 D25(1) example in the 2006 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 2006 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 complex 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 I suspect 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.

It is helpful that paragraph B8 of the 2006 Guidance specifically mentions avoidance due to substantial social embarrassment. This is not necessary to the argument above though. In fact it may be a further argument - that even if one did not view avoidance as a symptom of the stammer, then avoidance by reason of substantial social embarrassment, for example, should still be taken into account as an effect of the stammer.

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. 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' means at most 'more than minor or trivial'). It seems 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 2006 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:

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.

It seems likely that it can, according to the 2006 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 D25(1) example. This example does seem to say that these - or effects hidden by them - can be 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 2006 Guidance (including this example) into account where relevant.

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?

1) Arguments (a) and (b) above

There is a possible 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' (ie at most '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 (ie at most '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.

2) Schedule 1 para 6

If that argument fails, I believe one could strongly argue for same result under under Schedule 1 para 6, discussed elsewhere. Schedule 1 para 6 allows one to discount measures being taken to correct a disability. If Schedule 1 para 6 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.

3) Otherwise

If those arguments did not succeed, one would be in a more difficult position. Word substitution may or it 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

Where a person has a covert stammer, other people may not be aware of it.

It was thought at one time that a person might not have protection against being treated less favourably unless the employer or service provider knew about the stammer or other disability. However, this does not now seems to be the case, at least where there are factors to put the employer on guard (see more on this...). However, knowledge may be relevant to justification, and see also under Reasonable adjustments as to the employer knowing about the stammer.

Covert stammer as 'physical or mental impairment'

Often a person who avoids/conceals will also have a significant amount of overt dysfluency. However is there still a 'physical or mental impairment' if the person is fluent all the time, in other words they have a covert stammer. I think there is:

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Last updated 7th June, 2006