Who is protected: Covert stammering

(Applies only to acts of discrimination before 1st May, 2006.
Link to postion from May 2006 onward.)

People with a covert stammer are people who speak fluently (or whose disfluency is trivial) but who are hiding a stammer. They may have an awful lot going on internally in terms of, for example, anticipating and substituting words they cannot say, putting in fillers, maybe sometimes just staying quiet or avoiding situations. They don't necessarily take significantly longer to say things, nor do they evidently have a stammer at all. Almost everyone may relate to them as fluent people, not knowing that they have a stammer.

Many people with an overt stammer sometimes "avoid" rather than stammer, and the discussion here applies to avoidance (including word substitution) in overt stammerers as well.

Interiorised/covert stammering leaflet - on BSA website.

For a person with a covert stammer, or for a person with an overt stammer so far as he is avoiding, the stammer may drastically impact his quality of life. But does he have "a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities", including speech?

For a person with a covert stammer, the first question is whether it is a "physical or mental impairment" if the person is fluent. I would say it is:

• Most importantly, the person would still have an overt impediment with physical manifestations if they did not adopt their avoidance tactics. For the reasons I describe below (Goodwin v Patent Office and perhaps Schedule 1 para 6) I believe one looks at how the stammer would be without the tactics. Technically those arguments relate to the 'effect' of the impairment rather the issue of 'impairment' itself, but the fact remains that the impairment becomes physical in speech unless the person goes out of their way to avoid that. So it should be possible to say even that a covert stammer is a 'physical impairment' as in the Blacker case.
• In the alternative, there is the possibility of stammering being seen as a 'mental impairment'.
• Also I understand that a person with a covert stammer would still be considered to have the clinical condition known as stammering.
• For what it is worth, from what I have read I would expect PET scans would indicate the brain working in a similarly unusual way when speaking to that found in people who have a more overt stammer.

The question is then whether the impairment has a substantial adverse effect on one's ability to carry out normal day-to-day activities, bearing in mind that "substantial" is interpreted to mean only more than "minor" or "trivial". The outward effect for people with a covert stammer (and for people with an overt stammer so far as they avoid) will generally be various forms of avoidance as discussed below. It should be borne in mind that if avoidance and word substitution as discussed below are not seen as consistent with - and even evidence of - a "disability", the legislation could have the very odd result that speech therapy which encourages a person not to avoid or use word substitution might actually make him more likely to be "disabled" after the therapy than before it, as he may become outwardly less fluent.

• Avoiding situations
  The person will often avoid certain situations where he feels he would stammer. This may well be evidence of a substantial adverse effect within the DDA. In Goodwin v Patent Office the Employment Appeal Tribunal said: "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. Experience shows that disabled people often adjust their lives and circumstances to enable them to cope for themselves..." At least if the person would actually stammer substantially (ie to an extent which is more than minor or trivial) in the feared situations, it seems this should count. The situations avoided must be normal day-to-day ones, e.g. merely avoiding public speaking may not count if it is not seen as normal day-to-day. But, for example, avoiding socialising or speaking on the phone should count. The Employment Tribunal in Shaughnessy v The Lord Advocate did not seem to consider this aspect of Goodwin. This is a key reason why I think that decision is unlikely to be followed in future. (See also para C6 of the guidance.)
• Keeping quiet
  A person who stammers may go into a particular situation but be silent where he would otherwise speak. Again I would say the stammer is having a substantial effect on his "ability" to speak. The Goodwin case and other points dealt with under the previous bullet point seem to apply equally.
• 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.
  • There is an argument (which may or may not succeed) under the Goodwin case that the stammer should be judged by how substantial it would be if the person were not avoiding and substituting words, or inserting fillers. What has to be looked at under the statutory definition of disability is whether the effect on one's ability to carry out normal day-to-day activities is substantial. 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. It can therefore be argued that if a person would stammer if he were not switching words, 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 more than minor or trivial), then it can be argued that the statutory test is met.
  • If that argument fails, I believe one could strongly argue for same result under under Schedule 1 para 6, discussed elsewhere. 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.
  • If neither of those two arguments succeeds, one is in a more difficult position. One has to look at what is actually happening overtly, rather than how the stammer would be if one were not substituting etc. 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 might possibly be an adverse effect, but it also needs to be substantial (more than minor or trivial). The main adverse effect in practice is probably the underlying fear of stammering and getting found out, but the question legally is how far this manifests as an adverse effect on one's ability to carry out normal day-to-day activities.

To an extent the legal position here is unclear. However, there is a lot of potential for a person with a concealed stammer, or a person with an overt stammer so far as he avoids (or word-substitutes or uses fillers), to be treated as having a disability within the legal definition, at least if the stammer would have a substantial - ie more than minor or trivial - effect if he did not avoid or substitute. Also from a policy point of view it makes sense for such a person to be treated as having a disability. As mentioned above, if things such as avoidance and word substitution are not seen as consistent with and even evidence of a "disability", the legislation could have the very odd result that speech therapy which encourages a person not to avoid or use word substitution might actually make him more likely to be "disabled" after the therapy than before it, as he may become outwardly less fluent.

The Employment Tribunal dealt with a largely concealed stammer in Shaughnessy v The Lord Advocate, where the stammer does seem to have had a major effect on the applicant's life. However, the Tribunal found that it was not a disability on the facts. The Goodwin case does not seem to have been properly addressed by the Tribunal, and I very much doubt that a Tribunal in future to whom the proper arguments are put would follow the case.

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.

A person with a covert stammer might encounter problems in a situation where he has to say a particular set of words which he can't alter, e.g. an air traffic controller (see BSA article) or someone on the telephone required to follow a particular script. Section C of the guidance makes it clear that "normal day-to-day activities" do not include activities which are only normal for a particular person or group of people, so for example the term does not include work of any particular form. Thus the particular requirements of that job would probably not be "normal day-to-day activities". On the other hand, the phone example above may count as a normal day-to-day activity even if a particular script has to be followed. In any event, as indicated above, it is very possible that the person with a covert stammer may also experience an overt substantial adverse effect on his ability to carry out other activities, classed as "normal day-to-day", so as to be "disabled" within the Act. He might then be entitled (if he is willing to own up to the stammer) to ask his employer for appropriate adjustments to what he has to say - see "Reasonable adjustments". Of course the person with a stammer can choose to ask for adjustments whether he has the protection of the Act or not.

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© Allan Tyrer 1999-2005
Last updated 12th June, 2005 

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