Who is protected: Overt stammering

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

It seems that a severe stammer will be a "disability" within the Act, and stammering in general can be a "disability" depending on the degree of the stammer. What degree of stammering is required to fall within the DDA?

The key question under the DDA is whether the stammer's effect on one's ability to carry out normal day-to-day activities is "substantial". Para A1 of the guidance (quoted in more detail in the previous section - full version on DRC's 'Guidance' web page) says that a "substantial" effect is one which is more than "minor" or "trivial". The Employment Appeal Tribunal accepted this as the position in Goodwin v Patent Office. So it appears that the test is not hard to meet. Broadly, the effect of the stammer on one's speech in normal day to day situations just needs to be more than minor or trivial.

Elsewhere the guidance does have more specific things to say about speech impairments. According to para C19 of the guidance, a person whose stutter means that they take significantly longer than average to say things is likely to be treated as having a "disability". So is a person who cannot communicate clearly.

Otherwise, the case will have to be looked at on the facts, but the stammer should still be a "disability" if its effect in normal day to day activitives is substantial (ie more than minor or trivial, according to para A1). Para C19 says that both clarity of speech and how normal the rhythm of speech is are relevant.

Para C19 also says that inability to articulate fluently due to a minor stutter or speech impediment is not a disability and is therefore not protected by the Act. Further, the Act does not extend to people who are mistakenly believed to be disabled, e.g. a person with a slight speech impediment who is mistakenly assumed to be mentally handicapped.

However, the following are possible arguments which might be used in an effort to extend the protection of the Act to either all, or all but the most trivial, stammers:

One might say that if someone discriminates against a person with a minor stutter then that stutter is worth protection by the Act. However, this is not really a legal argument, and on the face of it the Act and guidelines do not say that. Perhaps a tribunal could be persuaded to lean in that direction, though I have not seen evidence of them doing so in equivalent cases. The legal question for the Tribunal remains whether the adverse effect of the stammer on the ability to carry out normal day-to-day activities is "substantial".
Para A1 of the guidance - quoted previously - discusses generally (not just for speech) the requirement that the effect be "substantial", and says that this requirement "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 more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects..." Pausing here, this could be used to argue that anything beyond the normal disfluencies that "fluent" people have is protected. It is not obvious though whether this can be reconciled with para C19 which excludes minor stutters and speech impediments.
Para A1 continues: " ... A "substantial" effect is one which is more than "minor" or "trivial" ." The Employment Appeal Tribunal accepted this as the position in Goodwin v Patent Office. This is helpful in giving "trivial" as an alternative word to minor - so arguably any speech impediment does really have to be trivial before it falls outside the protection of the Act.
On the basis of Para A1 and also the Human Rights Act there is a possible argument that any stammer is a disability (unless it has no effect on normal day-to-day activities). However, this does contradict Para C19 of the guidance and in the following I proceed on the basis that there can be stammers which do not have the required substantial effect.

Where the line is drawn will be a matter for the courts. The Employment Tribunal in Shaughnessy v The Lord Advocate considered this area somewhat, but in my view the decision is unreliable and unlikely to be followed in future. In another first instance 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).

Remember that people who stammer often don't realise the amount that they stammer, and 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.

Most people who stammer overtly sometimes "avoid" rather than stammering. Avoidance is discussed under "Covert Stammering ". As discussed there, Goodwin v Patent Office helps in arguing that avoidance is consistent with there being a substantial adverse effect.

Some people who stammer make various physical movements to accompany their stammering. It may be possible to take these into account in considering whether the stammer has a substantial adverse effect on normal day-to-day activities. On a straight reading of Schedule 1 paragraph 4(1)(f) # it does seem possible to take them into account, because the stammer producing them does affect speech, which is within the paragraph. This is not absolutely clear though, as someone might argue the paragraph is meant to say that impairments are to be taken into account only "so far as" they affect any of the listed activities. The person who stammers would then have to try and argue that the movements come under "physical co-ordination" within para 4(1)(c), which is unclear (para C16 of guidance).

Under paras A2-A6 of the guidance, factors to be considered in deciding whether an effect is substantial include the time taken to carry out an activity and the way it is carried out, compared with a person who does not have the impairment. Also, cumulative minor effects, or cumulative impairments each with a minor effect, can combine to a substantial adverse effect.

Top

Who is protected: Overt stammering

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

'Disability' menu pre-May 2006

Main page:

More legal detail:

Related areas

Who is protected: Overt stammering

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

'Disability' menu pre-May 2006

Main page:

More legal detail:

Related areas

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