Employment FAQs
This page summarises employment rights under the Equality Act 2010. You have these rights if your stammer is a "disability" as defined, or in some cases if you are perceived to have a disability.
Link to BSA website:
- BSA's Employment page has guidance on matters beyond your legal rights.
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Note: this page covers the Equality Act 2010 position from 1st October 2010. See also pre-Equality Act position and Which Act applies: Equality Act or DDA?
What types of discrimination are covered?
What counts as "discrimination"?
What does this mean in practice?
What adjustments might be needed on recruitment?
What other adjustments might be needed?
Can a potential employer ask about my stammer?
Should I tell the employer I have a stammer?
Are there any exclusions?
What if I am not employed by the person?
If there is discrimination
Can disabled person be treated more favourably?
Are there any cases on stammering?
How can the 'Guaranteed interview scheme' help?
Further information
What types of discrimination are covered?
- Practically anything to do with employment is covered, including recruitment, promotion, transfers, dismissals, redundancy, training or other benefits, or subjecting a person to any other detriment. (EqA s.39)
- Victimisation for getting involved in a claim is also covered.
- Apart from the Equality Act, you may have rights under other legislation. For example, if you have been dismissed you may have a claim for unfair dismissal. If you have resigned, it can sometimes be constructive dismissal as claimed (unsuccessfully) in the Alderson case. See As well as the Equality Act...
What counts as "discrimination"?
- Direct discrimination: for example, being treated less favourably (e.g. turned down for a job) simply because of prejudice. Probably also stereotyping, where an employer assumes someone who stammers could not do a particular job - without looking at the individual's abilities. The employer has no 'objective justification' defence. More on direct discrimination...
- Discrimination arising from disability: much wider than direct discrimination, but allowing the employer a defence if it can 'justify' its action ('objective justification'). Lack of knowledge of the disability may also be a defence. Newly introduced by Equality Act 2010. More on 'discrimination arising from disability'...
- Reasonable adjustment duty: very important. Broadly, an employer must take reasonable steps to modify any provision, criterion or practice which puts someone who stammers at a substantial disadvantage. There are also duties relating to physical features of premises, and provision of an auxiliary aid or service.
- Indirect discrimination: another new head of discrimination introduced by Equality Act 2010.
- Harassment: not strictly 'discrimination', but also unlawful. In Browne v John Edward Crowther Ltd (2002) an employer was held liable for abuse and taunting by colleagues as regards a stammer. More on harrassment.
- More on the different types of discrimination...
What does this mean in practice?
- For discrimination before October 2010, the Malcolm case severely limited one's right to claim for less favourable treatment related to a disability. Under Equality Act 2010 disabled people now have wider rights, while allowing the employer a defence if it can objectively 'justify' its actions.
- There is no objective justification defence to 'direct discrimination'.
- To date, most successful claims on stammering I am aware of have been for reasonable adjustments, particularly to selection procedures (below). The reasonable adjustment duty will continue to be very important.
- Regrettably there is still sometimes harassment of people who stammer in the workplace, so a claim for harassment can be relevant.
- You may be interested in these examples of jobs done by people who stammer.
What adjustments might be needed on recruitment?
- Adjustments an employer might have to make (subject to the reasonableness test) include but are not limited to:
- job and person specifications, if requirements which give problems for people who stammer are unnecessary or marginal;
- interviews: a person who stammers might require, for example, a longer time for the interview, oral answers being supplemented by written documents (the person may not say enough orally), or the option to give written answers;
- aptitude or other tests - it may be appropriate to give more time for an oral test, ensure that it is a specific test adapted to what is actually required for the job, take work history into account, and in some cases allow a test to be in a written form or allow a trial period in the job.
- In Y v Calderdale Council (July 2003) and Y v Bradford Council (January 2006) a person who stammers won claims about reasonable adjustments on recruitment. In Wakefield v HM Land Registry (December 2008), the employer won an appeal against a reasonable adjustment decision.
- More examples of reasonable adjustments.
- The employer's knowledge of the stammer can be relevant to the reasonable adjustment duty. See below Should I tell the employer I stammer?
What other adjustments might be needed?
- Other possible adjustments (subject to the reasonableness test) include but are not limited to:
- The employer's knowledge of the stammer can be relevant to how far there is a reasonable adjustment duty.
Can a potential employer ask about my stammer?
- From 1st October 2010, the Equality Act 2010 has introduced provisions to limit an employer asking about an applicant's health (including whether they have a disability) before a job offer.
- The employer can make enquiries after a conditional job offer. The idea is that if the applicant is subsequently rejected, it will be evident this was related to health/disability and the legality of that can be tested.
- The rule is not so useful for stammering, which will often be apparent at the interview in any event, even if the employer does not ask about disability.
- Enquiries are still allowed for particular 'permitted purposes', such as reasonable adjustments for interviews/assessments, and ability to perform instrinsic job functions. Questions about disability in application forms, interviews, questionnaires etc are now likely to be targeted towards the permitted purposes.
- More on pre-employment enquiries...
Should I tell the employer I stammer?
Whether and when a job applicant should talk to a potential employer about the stammer is largely not a legal question, and is discussed in BSA's employment leaflet for people who stammer (link to BSA website). However some legal aspects of it are:
- the duty to make reasonable adjustments will sometimes be reduced (or in some cases may not apply) if the employer has not been told about the stammer. Also, in practice reasonable adjustments to a recruitment process are more likely to actually happen if you raise the issue with the employer in advance. (More on raising in advance the issue of adjustments...)
- not a legal point, but having a disability may entitle one to a interview under the 'two ticks' guaranteed interview scheme
- the employer's knowledge of a disability can be relevant to its liability for discrimination arising from disability, though apparently not for 'indirect discrimination'.
- if the employer does ask a question on disability and the job applicant answers it falsely, Cheltenham Borough Council v Laird (2009) suggests that the employer may be able sue for damages (if it suffers any). However, I expect any such claim by an employer would be rare in practice. Also there are rules restricting how far employers can lawfully make pre-employment enquiries on health/disabiltity.
Are there any exclusions from the Equality Act?
- Service in the armed forces is excluded.
- Various other exemptions that used to exist before October 2004 no longer apply. In particular, employers with less than 15 employees are now covered by the legislation. So are various occupations which used to be excluded, including prison officers, fire-fighters, police officers, and offers of partnership.
- Only certain volunteers are covered by the Equality Act's employment rules.
- Various categories of people who are not employees are protected by the Equality Act - see next heading.
- A connection with Great Britain is required in order to come within the Equality Act. The precise rules are not clear, but the Equality Act may well have a broader territorial scope than applies for unfair dismissal. See Connection with Great Britain.
What if I am not employed by the person?
- Self-employed people may be included in the employment provisions if they are not in substance independent providers (see Employees and beyond: Self-employed?). Apprentices are also covered.
- There are 'contract worker' rules which can protect agency workers, people on secondment, and others who work for someone who is not legally their employer. (More on the contract worker rules...)
- There is protection for various non-employment situations, such as office holders, partnerships, barristers/advocates, local councillors, and work experience. (More on scope of employment rules...)
- There are rules against discrimination by trade organisations, including trade unions, employers organisations and professional institutions.
- There are rules against discrimination by professional/trade qualifications bodies such as the General Medical Council, the Law Society, the Public Carriage Office, and CORGI.
- There are special rules on discrimination against customers of 'employment services'. Employment services include vocational guidance, vocational training, and some other services.
If there is discrimination
- You can call or email the Equality and Human Rights Commission helpline (the EHRC took over from the Disability Rights Commission). Also, the Equality and Human Rights Commission can occasionally assist in bringing cases.
- You can approach a citizens advice bureau, Law Centre, solicitor or trade union - see sources of help and advice.
- Depending on the situation, it may be desirable to use the employer's grievance or appeals procedure. Compensation awards can be adjusted for not following good practice on internal resoluton of disputes. More on grievance and disciplinary procedures...
- ACAS can be brought in to conciliate.
- If you want to take it to court, the complaint will go to an employment tribunal. The time limit is generally three months (less one day).
- The 'questions procedure' and, when proceedings have commenced. discovery of documents can help in collecting evidence.
- The burden of proof shifts to the employer if the claimant makes out a prima facie case. More...
- The main remedy available from a tribunal is compensation. This can include loss of earnings and injury to feelings. Compensation for injury to feelings is determined according to three 'Vento bands' ranging from about £500 to £30,000.
Can disabled person be treated more favourably?
- It is permitted to treat disabled people more favourably than non-disabled.
- However, it may be that treating people with a particular impairment, or group of impairments, more favourably than others is allowed only if it complies with one of various provisions in the legislation, such as those on positive action or occupational requirements.
- More on treating disabled person more favourably...
Are there any cases on stammering?
These are some tribunal decisions I know of specifically on employment and stammering, but there are doubtless others:
- Wakefield v HM Land Registry (December 2008) - on the evidence, the Employment Appeal Tribunal overturned an employment tribunal decision that the applicant should have been allowed to give written answers to interview questions.
- Shirlow v Translink (2007/8) - an existing employee failed a 'competence-based interview' as he did not provide enough examples and evidence of his competencies. The tribunal held that his stammer was a disability. However, there was no breach of the duty to make reasonable adjustments - partly due to the 'lack of knowledge' defence.
- Y v Bradford Council (January 2006): a job applicant who stammers had been permitted by the employer to give written answers in a selection process. However, the tribunal found that the arrangements made were not sufficient to fulfil the duty to make reasonable adjustments.
- Y v Calderdale Council (July 2003): an employer allowed more time for the interview of an applicant who stammered. However the applicant won the case on the ground that this was not sufficient reasonable adjustment.
- Browne v John Edward Crowther Ltd (April 2002): the employer was held liable for abuse and taunting by colleagues directed at the claimant's stammer.
- Alderson v Walkers Snack Foods (December 2001): allegations of harassment/verbal bullying of a person who stammers were rejected by the tribunal on the evidence.
- Shaughnessy v The Lord Advocate (February 2000): a person who stammers was rejected for a job. The stammer was held to be too minor to be a 'disability', so the tribunal never got to consider whether the rejection was because of his stammer.
- Townsend v Office for National Statistics (July 2004): the Employment Appeal Tribunal upheld a decision that the applicant's dismissal was not for a reason related to his disability, and that there had been no failure to make reasonable adjustments
- Whittick v British School of Motoring (April 2002): a case brought by a person wanting to be a driving instructor was dismissed because no employment was involved.
- Bennett (2002-2003): not a DDA case, but the fact that a supervisor made fun of the stammer was one factor which helped an unfair dismissal claim succeed.
- Heatherwood & Wrexham Park Hospitals Trust v Beer (June 2006): not about developmental stammering, but the EAT considered reasonable adjustments to redeploy a person with a mental impairment of which a prominent symptom was stuttering.
- Spillet v Tesco Stores Ltd (February 2006): the applicant claimed to have been turned down for a job as a wages clerk because of a stammer. The appeal was on a procedural point, and so did not determine the outcome of the case.
Tribunal decisions give only part of the picture. People who stammer have successfully used the DDA (the predecessor of the Equality Act) without the matter going as far as a tribunal or court. For example:
- Reasonable adjustment settlement (2004); this involved for example the set-up of the interview room for use of 'text to speech technology', difficulty in giving full answers with a stammer, and weighting of information given in the application form to compensate.
- An academic in Northern Ireland received an agreed sum in compensation for failure to be promoted, allegedly due to his stammer. This was under an out of court settlement reached in December 2002. He had subsequently received the promotion, after a review of the scheme under which he had been refused it for two years.
- A person obtained paid time off for an intensive stammering course through using the employer's internal grievance procedure. More...
- Perhaps going beyond the DDA, an employer paid for a course and BSA conferences - www.stammering.org/jmann.html
- According to a newspaper report, a police officer's probationary period was extended after he repeatedly failed passing-out exams because of difficulty talking. He was working in an admin job.
There are numerous legal decisions on disabilities other than stammering, which are relevant in various ways. I refer to many of these where appropriate on the website.
How can the 'Guaranteed interview scheme' help?
- Employers who have signed up to the 'two ticks' (disability symbol) Positive about disabled people scheme guarantee disabled people an interview if they meet the minimum criteria for the job vacancy. There are also other promises made by employers within the scheme.
- It is up to employers whether they choose to operate the scheme, which is separate from the Equality Act.
- More about 'Guaranteed interview scheme'....
Further information
On my site
In October 2010 an article by me was published in 'Occupational Health at Work' journal. You can download it here: Time to talk: Stammering in the workplace (pdf). The journal is published by the At Work Partnership.
External websites
- EHRC Guidance for workers (link to EHRC website) - 'non-statutory' guidance. Very useful, though (unlike Codes of Practice) tribunals do not need to take it into account.
- The 2011 Equality Act Code of Practice on employment (pdf, link to EHRC website) , which came into effect on 6th April, 2011. It needs to be taken into account by tribunals. More on EqA Codes of Practice.
- Disability and work: A trade union guide to the law and good practice (pdf) - booklet by the TUC, updated for Equality Act 2010.
- British Stammering Association - Employment index page, which includes links to:
- The International Stuttering Awareness Day Online Conference 2000 includes a very interesting section on The Real World of Jobs. There are papers by several people who stutter telling of the path they took in attaining their career goals, plus questions to the writers and answers.
- Interesting papers on the ELSA website involving questionnaires of employers and people who stutter in Denmark: Stuttering and Communication - What is Going Wrong and Stuttering and Labour Market.
- Stuttering, Employment and the ADA by Thomas David Kehoe, on the US position but with interesting general stuff and practical advice on applying for jobs.
- Stuttering: Answers for Employers, from the Stuttering Foundation of America but with much that is useful in the UK and elsewhere
- How to Handle Job Interviews in 'Stuttering' Wikibook, to which anyone can contribute.
- Stuttering and work: I can do more than stutter. . . . - translation of Dutch leaflet on stuttering and employment.
For web links generally on stammering and disability discrimination see the links page.
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Last updated 2nd January, 2011
