Is the stammer a disability? (pre-May 06)
(This page applies only to acts of discrimination before 1st May, 2006.
Link to postion from May 2006 onward.)
This page deals with whether your stammer counts as a "disability" within the DDA, in relation to discrimination which occured before 1st May, 2006. If not, you can't claim under the DDA. If the stammer does count as a disability, the legislation gives you various rights, including in respect of employment, goods and services and education.
Does a stammer count as a disability?
What if I only stammer substantially in some situations?
What if my stammer depends on tiredness, stress etc?
What if I would have a substantial stammer but I'm using speech techniques?
What if I would have a substantial stammer but I'm using a DAF or other device?
What if my stammer used to be more severe?
Am I still protected if I hide my stammer?
What about being registered as disabled?
"I don't like to be seen as disabled."
Are there any cases on stammering?
Changes
Further information
Does a stammer count as a disability?
- A disability is defined as a physical or mental impairment which has a substantial and long-term adverse effect on one's ability to carry out normal day-to-day activities.
- Though not a binding precedent, the tribunal in the Blacker case held a 'speech impediment' to be a physical impairment. It was undisputed that a stammer is a 'physical or mental impairment' in other tribunal cases I am aware of (see cases below). It does seem correct that a stammer is a physical or mental impairment (see here for more detail). Long-term means at least twelve months.
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On this basis, a stammer is covered in practice if it has a substantial adverse effect on one's ability to carry out normal day-to-day activities:
- "substantial" is interpreted as "more than minor or trivial", so the test should not be that difficult to meet;
- people with a severe stammer are clearly covered;
- it would be reasonable to regard people who take significantly longer than average to say things as covered;
- any other stammer having more than a minor or trivial effect should also be covered - factors include clarity and rhythm of speech
- there is a possible argument that any stammer is a disability (unless it has no effect on normal day-to-day activities), but it is by no means clear that the argument would succeed under the current guidance.
- You may stammer more than you think. One way to find out how much might be to record yourself.
What if I only stammer substantially in some situations?
- It depends on the situations. To fall within the definition they must be "normal day-to-day activities".
- Account is taken of how far the activity is "normal for most people and carried out by most people on a daily or frequent and fairly regular basis". So activities which are normal only for you or, for example, in a particular kind of work are not included. For example:
- stammering on the phone would very likely be covered (and may perhaps be covered if only some phone calls give problems);
- public speaking may not be covered on the basis it is not a "normal day-to-day activity" - though new draft Guidance implies it might in fact be covered.
- Both home and work activities need to be looked at so far as they are "normal day-to day activities", even if the discrimination is just because of activities at work.
- It is not quite clear whether a substantial stammer in only one normal day-to-day activity would be enough, though normally a stammer would extend over several activities.
- In any event, the tribunal is obliged to focus on what you cannot do, rather than what you can do.
What if my stammer depends on tiredness, stress etc?
- The guidance acknowledges that whether adverse effects are substantial may depend on environmental factors such as tiredness and stress.
- In this event, the extent to which these factors are likely to have an impact needs to be considered.
- Remember that if you commonly stammer substantially in certain normal day-to-day situations anyway, you are likely to be covered anyway.
What if I would have a substantial stammer but I'm using speech techniques?
- It may be that you look at how the stammer would be likely to be if you weren't using the techniques (eg block modification, costal breathing).
- However, the extent of this rule is unclear. For example does it also apply to techniques you have made up yourself, or to techniques which do not come from therapy with a qualified professional? I would argue yes it does.
What if I would have a substantial stammer but I'm using a DAF or other device?
- You almost certainly look at how the stammer would be likely to be if you weren't using a DAF or FAF device or masker to speak fluently.
What if my stammer used to be more severe?
- If your stammer used to have a substantial adverse effect on normal day-to-day activities but it doesn't now, you are still covered:
- if stammering having a substantial adverse effect on normal day-to-day activities is more likely than not to recur: or
- in any event under the "past disability" rules. It is not clear, however, whether the past disability rules only protect you if the discrimination is actually because of how the stammer used to be.
Am I still protected if I hide my stammer?
- Of course the amount you actually stammer may still be sufficient to be a disability.
- Though the legal position is not clear, there is a lot of potential for a person hiding a stammer to be treated as having a disability, whether it be a covert stammer, or an overt stammer to the extent that the person avoids.
- If you avoid speaking or avoid certain speaking situations (eg the phone), you may well be able to take into account how your stammer would affect your speech if you did speak or go into those speaking situations. But see also the Shaughnessy case below.
- Such things as word substitution and fillers might be covered.
- You should look at the employment tribunal decision in Shaughnessy v The Lord Advocate which dealt with a concealed stammer. However, be aware that this case may well be wrong and could be contested in a future case.
What about being registered as disabled?
- You no longer "register as disabled". You just look at whether you are "disabled" under the new definition.
- However, people registered as disabled on both 15th January, 1995 and 2nd December, 1996 were treated as having a disability under the new legislation up to 2nd December, 1999. They are now treated as having a past disability. This applies even if they do not meet the new definition.
- These people will of course also have a current disability after 2nd December, 1999 if they meet the normal definition under the Act,
"I don't like to be seen as disabled."
- The Act does apply to "disabled" people as defined, so if you want to rely on the Act you do need to say you are disabled within the meaning of the Act.
- Remember though that the term "disabled" as defined for the purposes of the Act goes well beyond what many people would see as disabled in the normal sense. For example it can include back problems if they last for more than a year. It is a statutory definition to decide who does and who doesn't have rights under the Act.
- I say more about seeing yourself as 'disabled' or not at Reluctance to be seen as "disabled".
Are there any cases on stammering?
- The only tribunal decisions I know of specifically on stammering under the DDA are:
- Shaughnessy v The Lord Advocate: a stammer which was largely concealed was held to be too minor to be a "disability".
- Blacker v Servisair (UK) Ltd: the tribunal held a 'speech impediment' to be a 'physical impairment'. Since the applicant's impairment undisputedly had the required long term and substantial effects, he was disabled within the DDA. In fact the tribunal does not say whether the 'speech impediment' was a stammer.
- Townsend v Office for National Statistics: the Employment Appeal Tribunal reports that at a preliminary hearing it was determined that, because of his stammer, the applicant was at all material times a person with a disability for the purposes of the DDA. However, I have not seen the decision from the preliminary hearing.
- Y v Calderdale Council, Alderson v Walkers Snack Foods and Whittick v British School of Motoring - in all three cases it was conceded by the other party that the person's stammer was a disability within the DDA. The cases are not authority on the meaning of "disability", partly because the point was conceded and so did not fall to be decided by the tribunal. Even so, it is encouraging to have cases where it was acknowleged that a particular person's stammer was a disability within the DDA. Only in Y did the claim as a whole succeed.
- There are a few examples of cases settled out of court on the employment and goods and services pages.
- There are numerous legal decisions on disabilities other than stammering but which are relevant in various ways. I refer to many of these where appropriate on the website.
Changes
- The official guidance on what is meant by 'disability' has just been revised. The new version, not yet reflected on this page, gives new clarification on how far a stammer should be treated as a disability in relation to acts of discrimination happening on or after 1st May 2006. More on new guidance...
- For the longer term, the Disability Rights Commission is consulting on whether the DDA definition of 'disability' should broadened so that the law provides protection against discrimination on the grounds of impairment, regardless of the level or type of impairment. More on possible changes to definition...
Further information
- Disability Rights Commission helpline: 08457 622 633, and see this page on sources of help and advice.
- External website:.
- See the Disability Rights Commission's "Guidance" page for the official Guidance on matters to be taken into account in determining questions relating to the definition of disability. (Note: there is revised guidance from May 2006 - this page only relates to the position before that.)
- For web links generally on stammering and disability discrimination see the links page.
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Last updated 5th May, 2006
