'Substantial effect' - overt stammering

Short version

For a rough approximation of the test for a stammer to be a 'disability', 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 example from the 2011 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. Also note that even if a stammer does not actually have a substantial effect on normal day-to-day activities, on a claim for 'direct discrimination' or harassment it is likely to be enough that the employer (or service provider etc) perceives it to have that effect - see perceived disability.

Low threshhold

'Substantial' means only 'more than minor or trivial'. It does not mean 'very large'. So the threshhold is not a high one.

From 1st October 2010, this definition of 'substantial' is in s.212(1) EqA. However, it was also the definition used before then under DDA 1995, in accordance with Para B1 of the 2006 Guidance and Goodwin v Patent Office.

The 2011 guidance describes the test as follows:

B1. The requirement that an adverse effect on normal day-today 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 effect is one that is more than a minor or trivial effect..."

It can be argued that stammering dysfluencies, eg blocking (which my sometimes be hidden), are indeed something going beyond normal differences which exist between people, even where a listener perceives them as minor. A person who stammers has the normal dysfluencies that anyone else has, plus the stammering on top of that. There is therefore a possible argument that any effects of a stammer are 'substantial' - see below Is any stammer covered?

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 - reflecting Paragraph B1 of the 2006 Guidance (this also appears in the current 2011 Guidance).

In Anwar v Tower Hamlets College (2010), another case decided under the DDA (prior to Equality Act 2010) the Employment Appeal Tribunal (EAT) considered it permissible to find that an impairment did not have a 'substantial' effect if the effect was more than 'trivial' but not more than 'minor'. The "more than minor or trivial" test, said the EAT, was not a legal definition. From October 2010, however, that test is a legal definition, in s.212(1) EqA. It is not clear whether this means the courts will now give more weight to 'trivial'. In any event the tribunal in Anwar had looked at paragraph B1 of the 2006 guidance (which was similar to the current 2011 Guidance) and decided the headaches in the case were "the sort of physical condition experienced by many people which has what can fairly be described as a minor effect". It seems very likely that under Equality Act 2010 tribunals will continue to consider whether the effects go beyond normal differences between people, as set out in the guidance.

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

Example of what can be covered

Example from 2011 Guidance

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."
[It says 'these' cases because there are two non-stammering examples before this example.]

The 2011 Guidance has a major example about a person who stammers at para D17. 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, particularly in telephone calls, goes 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 stammer. It concludes that in this case there is a substantial adverse effect on the person's ability to carry out normal day-to-day communication activities.

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?

Before May 2011, there was a similar example in the 2006 guidance. Note that this example is different in the Northern Ireland guidance.

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

"Some impairments may have an adverse impact on the ability of a person to carry out normal day-to-day communication activities. For example, they may adversely affect whether a person is able to speak clearly at a normal pace and rhythm ... Account should be taken of how such factors can have an adverse effect on normal day-to-day activities. (para D17 of the 2011 Guidance).

So the Guidance particularly mentions:

clarity
normal pace
normal rhythm

Time taken

Para B2 of the 2011 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.

Note 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.

Way in which activity carried out

Para B3 of the 2011 Guidance 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 2011 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, going for a walk and 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, environment etc

The 2011 Guidance acknowledges that disabilities need not occur all the time to be within the Equality Act. Environmental conditions may exacerbate or lessen 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, individually or cumulatively, are likely to have an impact on the effects should, therefore, also be considered" (para B11).

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

Another example of environmental conditions being taken into account is at para D20 of the 2011 Guidance, where a woman with tinnitus has particular difficulty hearing and responding to a supermarket checkout assistant if two people behind her in the queue are holding a conversation at the same time. A person who stammers may also find speech more difficult if others are talking around them.

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 Equality Act 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 D17 example (above) about a person whose stammer appears particularly in phone calls may imply that it is enough.

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 have difficulty doing (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 2011 Guidance in bold letters at para B9, 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.

However, the issue is not likely to be of great importance to a stammer in that if will normally occur, particularly on 'bad days', across a range of speech situations, either openly or with the person uses avoidance techniques to conceal it.

Is any stammer covered?

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 Equality Act. The Disability Rights Commission 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 Equality Act 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 2011 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 is something beyond the dysfluencies which occur to most people.

Since 2006, this idea seems to be reflected in what is now the para D17 example which says that the person's "stammer, particularly in telephone calls, goes 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.

For more on the argument, 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 Equality Act 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 and the 2011 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.

Top