'Substantial effect' - overt stammering

Short version

For a rough approximation of the test, you could ask: Does my stammer have more than a minor or trivial effect in normal day-to-day situations - or at least in some of them? Most likely it does. There is even some argument that any stammer has a 'substantial' effect.

Also see the examples from the 2006 Guidance below to get an orientation on what should be covered.

Even if a stammer does not have sufficient overt effects, hidden effects or even past effects may be relevant - see Disability FAQ.

Low threshhold

'Substantial' means only 'more than minor or trivial'. It does not mean 'very large'. (Para B1 of the 2006 Guidance, Goodwin v Patent Office). So the threshhold is not a high one.

The Employment Appeal Tribunal (EAT) looked at what is a 'substantial' effect in Paterson v Commissioner of Police of the Metropolis (2007). It said the question is not whether the person is disadvantaged with reference to the 'ordinary average norm of the population as a whole'. The tribunal must compare how that particular individual in fact carries out the activity compared with how he would do without the impairment. So you look at how you speak with the stammer compared with how you would speak without it - not how fluent people generally speak.

The EAT in Paterson went on to say that the effect is 'substantial' if that difference is more than the kind of difference one might expect taking a cross section of the population. This reflects Paragraph B1 of the 2006 Guidance, which says that the requirement for there to 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." I would argue that stammering dysfluencies, eg blocking, are likely to be different from 'normal' dysfluencies, even if they are 'minor'. There is therefore a possible argument that any effects of a stammer are 'substantial' - see below Is any stammer covered?

Before I go into the more abstract guidance, it may be helpful to get a feel for the test by going straight into some specific examples on stammering:

Examples of what can be covered

Example from 2006 Guidance
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."

Phone call example

The 2006 Guidance has a major example about a person who stammers at para D25(1). The full text of the example is in the box to the right. It includes the sentence:

"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."

The example goes on to talk about avoidance strategies the person uses to hide the effect of the stammer. It concludes that it would be reasonable to regard the stammer as having a substantial adverse effect.

I expect most people who stammer could see themselves in this example. The example is very helpful in illustrating in a concrete way that the threshhold is a low one. The person may have quite a mild stammer (though he also avoids) - it just goes beyond the normal dysfluencies that 'fluent' speakers would have. Indeed it may be that any stammer which has some adverse effect on fluency in normal day-to-day activities is covered as a 'disability' - see below Is any stammer covered?

Taking longer to say things

A bullet point example in para D25(1) of the 2006 Guidance says that it would be reasonable to regard as having a substantial effect:

"taking longer than someone who does not have an impairment to say things".

Again this example is helpful. Bear in mind though that the Guidance is not saying that you only have a disability if you take longer to say things. For example a person may speak with a broken rhythm and have a 'disability', but get as many words out within a given time as some 'fluent' people.

People without an impairment clearly speak at different speeds. It may be that this bullet point example does not apply unless one's speech takes longer than the speech of those within the normal range of speeds.

The equivalent wording in the 1996 Guidance was: "taking significantly longer than average to say things". An example where an Employment Tribunal held this to apply is Heatherwood & Wrexham Park Hospitals Trust v Beer. The claimant there had a mental impairment, and there is little information on the severity of the stutter.

Example of what is not covered

A further bullet point example in para D25(1) of the 2006 Guidance says that 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"

It is unclear whether this is intended to apply to stammering - the question is discussed under Is any stammer a 'disability'?.

What to take into account

This is guidance, so it does not mean these are the only things which a tribunal can be taken into account.

Specifically on speech

"Account must be taken of how far a person is able to speak clearly at a normal pace and rhythm... It is necessary to consider any effects on speech patterns..." (para D25(1) of the 2006 Guidance).

So the Guidance particularly mentions:

clarity
normal pace
normal rhythm

Time taken

Para B2 of the 2006 Guidance says that in assessing whether the effect is substantial, the time taken by a person with an impairment to carry out a normal day-to-day activity should be considered. It should be compared with the time it might take a person who did not have the impairment.

See the bullet point example above for brief discussion on this. In particular, the Guidance is not saying that you only have a disability if you take longer to say things.

Way in which activity carried out

Para B3 says that another factor is the way in which a person with an impairment carries out the activity, compared with the way the person might be expected to carry it out if he did not have the impairment.

Cumulative effects

An impairment may not have a substantial effect on ability to carry out a particular normal day-to-day activity in isolation. However, its effects on more than one activity, taken together, could result in an overall substantial adverse effect (para B4 of 2006 Guidance). For example a person with breathing difficulties could experience minor effects on ability to carry out a number of activities such as getting washed and dressed, preparing a meal, travelling on public transport, but taken together the cumulative result would amount to a substantial adverse effect (para B5).

This could be helpful with stammering - though often a stammer will also have more than minor effects on one or more activities taken by themselves.

If a person has more than one impairment (eg stammering plus something else), one can look at whether the impairments together have a substantial effect (para B6).

Avoidance, electronic devices, speech techniques etc

The stammer may have a substantial effect even if outwardly you are speaking fluently. On avoidance/concealment see Hiding your stammer. On electronic devices, speech techniques etc see Therapy.

Duration of stammer?

This is not in the Guidance, but the Northern Ireland Court of Appeal said in Cunningham v Ballylaw Foods Ltd (2007) that the substantiality of an impairment is influenced by the time it is likely to last. An impairment is more likely to have a 'substantial' effect if it is long term. This might help in arguing that a stammer (which is often lifelong) has a substantial effect and is thus a disability, even if it is fairly mild.

Variability - tiredness, stress etc

The 2006 Guidance acknowledges that disabilities need not occur all the time to be within the Act. Environmental conditions may exacerbate the effect of an impairment. Factors such as time of day or night, tiredness, or the amount of stress the person is under, may have an impact on the effects. When assessing whether effects are substantial, "the extent to which such environmental factors are likely to exacerbate the effects should, therefore, be considered." (para B10).

So it should be relevant if a person's stammer is likely to be more severe when they are tired or stressed, for example.

It seems that environmental conditions at work can be taken into account towards there being a substantial adverse effect. See Normal day-to-day activities - Work activities.

A stammer can also become more severe for no apparent reason. A person may be having a good day and then suddenly have a severe block. Doubtless this should be taken into account as well.

How widespread need the effect be?

I'm not sure how likely it is, but say one's stammer really happens only in phone calls. Is that enough?
(Bear in mind that there may also be an effect for DDA purposes in any activity where you manage to speak fluently by means of word substitution for example, or where you avoid the situation or speak less in it - see Hiding the stammer; or perhaps where you use speech techniques.)

The para D25(1) example (above) about a person whose stammer appears particularly in phone calls may imply that it is enough. Para D3 on shopping is also helpful.

Also there is an accepted principle that the tribunal must focus on what you cannot do, or can only do with difficulty, rather than what you can do. For example, the tribunal must not balance what you can do (eg chatting to your spouse) against what you can't do (eg making a phone call). Many tribunal decisions holding that a person was not disabled have been overturned on the ground that the tribunal failed to focus on what the person could not do. This principle is stated in the 2006 Guidance at para B8, and the key authorities on it are Goodwin and Vicary. A useful more recent case on it is Ekpe.

Furthermore the guidance on cumulative effects (above), while saying that minor effects from various activities can be added together to produce a cumulutive substantial effect, seems to acknowledge there may be a substantial (ie more than minor or trivial) effect in just one activity.

On the other hand, para D25 of the 2006 Guidance says: "Account should be taken of the extent to which, as a result of either a physical or mental impairment, a person may have the capacity to speak, hear or see, but may nevertheless be substantially adversely affected in a range of activities involving one of these capacities as a result of the effects of his or her impairment." In the light of the points above, it is not clear how much significance to give to the term 'range of activities' in this sentence.

We will have to see what approach the tribunals take. The point is not so important in practice if 'substantial' stammering need only go beyond the occasional lapses in fluency most people have, as people who stammer will commonly do this in various normal day-to-day situations.

Is any stammer covered?

In the light of the 2006 Guidance, arguably yes provided it has some effect on fluency in normal day-to day activities. However, this is not clear.

There is a policy argument to say that the focus should be on whether there is discrimination - if a stammer is significant enough that a person is discriminated because of it then it should fall within the DDA. The Disability Rights Commission has recommended that any impairment should be covered by the DDA regardless of level or type (see Legal definition of disability to be extended?), but that is not the law at the moment.

However even under present law and guidance, an argument can be made that any stammer is within the DDA if it has some effect on fluency in normal day-to-day activities. The argument is basically that in the case of a stammer this effect will inevitably be 'more than minor or trivial'. 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." The clinical condition of stammering, however, is something beyond the dysfluencies which occur to most people.

This idea now seems to be reflected in the para D25(1) example 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." One would expect any stammer to go beyond the occasional lapses of fluency anyone may have.

There are other issues to consider, particularly whether the argument is contradicted where the guidance says that "inability to articulate fluently due to a lisp or other minor speech impediment" is not within the DDA. We will have to see what attitude the tribunals take. For more on the argument, both pro and con, see Is any stammer a 'disability'?

If the stammer does not go beyond the occasional dysfluencies most people have because it is being hidden or speech techniques etc are being used, it may come within the DDA anyway under the special rules on this - see Hiding the stammer and Therapy.

Cases

Where the line is drawn will be a matter for the tribunals. In practice, there has often been no dispute that the stammer has a substantial effect, so the tribunal does not have to decide the issue - see Cases on stammering.

The Employment Tribunal in Shaughnessy v The Lord Advocate considered this area somewhat, but in my view the decision was unreliable even before the 2006 Guidance, and has now been rather overtaken by that Guidance.

In another Employment Tribunal case, Pallace v Shepherd Homes, a stroke sufferer with a speech difficulty was held not to be disabled, but this difficulty seems not to have been apparent to colleagues (though I don't say that should be the determining factor).

Check how much you actually stammer?

People who stammer may not realise the amount that they stammer. Also people around may have grown so used to it they don't notice much either. Recording yourself might give you an idea of how much you actually stammer, as well as having an assessment by a speech and language therapist.

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