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Stammering varies, depending on situation etc

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

Introduction
Tiredness, stress etc
What situations count as "normal day-to-day activities"?

Most people with a stammer don't stammer all the time, but may stammer significantly on the occasions when they do. How is this treated?

In looking at times when fluency is due to therapy or use of techniques, or of a device, remember that the stammer may well be looked at as if the help weren't here (see the next section Therapy...).

Tiredness, stress etc

The 1996 guidance (DRC's 'Guidance' web page) acknowledges that disabilities need not occur all the time to be within the Act. Whether adverse effects are substantial may depend on environmental conditions which may vary, eg the time of day or night, or tiredness, or the amount of stress the person is under. Here, "the extent to which such environmental factors are likely to have an impact should ... be considered" (para A10 of the guidance).

The line will need to be drawn by the courts. In Shaughnessy v The Lord Advocate it was acknowledged that the stammer could be worse in stressful situations. However, on the facts the tribunal held the effects of the stammer were not substantial.

What situations count as "normal day-to-day activities"?

A stammer will often vary depending on the situation. To be relevant the situation must be a "normal day-to-day activity". What is important is whether the stammer has a substantial adverse effect on one's ability to carry out normal day-to-day activities.

To decide what is a "normal day-to-day activity", 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 it does not include work of a particular form, as this would not be "normal" for most people. Nor does it include hobbies such as playing a musical instrument or sport, nor performing a highly skilled task (paras C2-C3 of guidance.)

The Employment Appeal Tribunal in Commissioner of Police for the Metropolis v Ekpe took the view that it is not necessary for a majority of the population to do the activity. For example, putting rollers in one's hair qualfies as a normal day-to-day activity, even if only a minority of women (themselves only part of the population) do it. "The antithesis for the purposes of the Act is between that which is "normal" and that which is "abnormal" or "unusual" as a regular activity, judged by an objective population standard ..... what is "normal" [may] best be understood by defining it as anything which is not abnormal or unusual (or, in the words of the Guidance, "particular" to the individual applicant)."

Domestic versus work activities

Some tribunals have focused only on domestic activities (even though the discrimination was at work) on the basis that it is these which are "normal day-to-day activities". Others have focussed on work activities, which is logical if the discrimination happened because of the activities at work but is incorrect under the guidance.

However, the answer that will emerge is very likely to be that one looks at all areas of life so far as they consist of a "normal day-to-day activity". For example, typing at a keyboard seems to be considered (by para C15 of the guidance) as a "normal day-to-day activity" as it is something which very many people do . It is very often done at work, but it is not specific to a particular job.

The Disability Rights Commission has recommended clarifying the guidance on work situations, partly in the light of Commissioner of Police for the Metropolis v Ekpe (see Proposed Changes).

Telephone

A situation with which many people who stammer have particular problems is speaking on the telephone, whether at work or home. I think this must come within the DDA as a normal day-to-day activity. Speaking on the phone is a "normal day-to-day activity" for very many people. The employment tribunal in Shaughnessy v The Lord Advocate seemed to accept that too.

What if the stammer is significant on the phone at work but does not have a substantial effect at home, perhaps because the person is under more stress at work and/or the calls are to people he does not know. The person in this situation may well be protected by the Act but it is not clear, e.g. one might argue that stammering a significant amount of the time in an activity such as telephone calls is enough, or possibly that potentially stressful calls to people one doesn't know are a "normal day-to-day activity" for people generally.

Stammering in situations which are not counted as normal day-to-day activities would not be taken into account. (An example of what may not be a normal day-to-day activity is public speaking - para C19 of guidance - but draft new Guidance seems to imply public speaking may be a normal day-to-day activity.) Of course there may be other normal day-to-day situations in which the person also stammers.

Often a person's stammer will have a substantial effect in several situations, but say the effect is only substantial in the case of one or two normal day-to-day activities, e.g. speaking on the phone. It is not clear whether this on its own would count as a disability, but Vicary v British Telecom seems to indicate that it may do. The tribunal may have disregarded this in Shaughnessy v The Lord Advocate,

A key point is: the tribunal must focus on what you cannot do, rather than what you can do. For example, the tribunal must not balance what you can do against what you can't. 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. The key authorities on this are Goodwin and Vicary, and a useful more recent case on it is Ekpe.

Where there is doubt as to whether the person has a disability now but his stammer used to be more severe, see also the section on Longer term variations is stammering.

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Last updated 10th August, 2001