Employment FAQs
This page summarises employment rights under the DDA. You only have these rights if your stammer is a disability" as defined in the DDA.
What types of discrimination are covered by the DDA?
What counts as "discrimination"?
What does this mean in terms of what jobs a stammerer can and can't be refused?
What adjustments might an employer have to make on recruitment?
What other adjustments might an employer have to make?
Are there any exclusions?
What if I am not an employee of the relevant person?
If there is discrimination
Are there any decided cases on employment and stammering?
Further information
What types of discrimination are covered by the DDA?
- 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.
- Victimisation for getting involved in a claim will normally also be covered.
- Remember 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 then it can sometimes be treated as constructive dismissal, as claimed (unsuccessfully) in the Alderson case.
What counts as "discrimination"?
- Direct discrimination: very broadly, you could say this covers less favourable treatment discrimination purely on the ground of the disability. The employer has no 'justification' defence (contrast disability-related discrimination below).
- The Employment Code of Practice (para 4.20) points out it could apply where an employer makes assumptions and does not adequately consider the person's individual abilities. [More on direct discrimination]
- Reasonable adjustments: both after and (to a very large extent) before October 2004, it can be discrimination if the employer fails to take reasonable steps to modify any provision, criterion or practice which puts you as a person with a stammer at a substantial disadvantage.
- Harassment: not strictly 'discrimination', but covered by the DDA. The statute gives a definition of harassment, and European law may extend the definition still further. A claim for harassment failed in the Alderson case, but only because the tribunal thought there had been no harassment.
- Disability-related discrimination (drd): relegated to last in the list because the House of Lords decision of LB Lewisham v Malcolm in June 2008 has severely restricted its the usefulness, at least for the time being. Claimants are likely to try and re-frame their claim also as one for reasonable adjustments or harassment (above). Drd applies broadly where an employer treats you less favourably for a reason related to your disability - but according to the Malcolm case this has roughly the same scope as direct discrimination. Unlike direct discrimination, for drd the employer has a defence if he shows 'justification, ie that his reason is
What does this mean in terms of what jobs a stammerer can and can't be refused?
Note: the bullet points under this subheading have not yet been updated for LB Lewisham v Malcolm (June 2008), as a result of which disability-related discrimination and therefore the 'justification defence' will not really be relevant for the time being.
- The courts will need to draw the lines here.
- Hopefully people who stammer will generally be seen as quite capable of having jobs where communication with the public or others is important. The individual circumstances - e.g. the particular stammer and the job itself - will be relevant.
- Some people with a stammer have done jobs where fluency is vital for safety - e.g air traffic controllers and firemen. Always the individual facts need to be considered.
- Court decisions have limited to some degree a tribunal's ability to substitute its own view for that of an employer - eg where a risk assessment is involved. The new 'direct discrimination' category may help where eg an employer relies on a health professional who has not taken sufficient account of the person's individual abilities.
- Click for a more detailed discussion on "justification" - when can a person be treated less favourably because of their stammer?
- You may also be interested in these examples of jobs done by people who stammer.
What adjustments might an employer have to make on recruitment?
- Adjustments an employer might have to make (subject to the reasonableness test) include but are not limited to:
- job specifications, if requirements which give problems for people who have a stammer are unnecessary or marginal;
- interviews: a person who stammers might require, for example, a longer time for the interview or - even if the job requires oral skills - the option to give written answers (see for example Y and Wakefield cases below)
- aptitude or other tests - it may be appropriate to give more time for an oral test, ensure 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.
- In Y v Calderdale Council (July 2003), Y v Bradford Council (January 2006) and Wakefield v HM Land Registry (July 2007, under appeal) a person who stammers won claims about reasonable adjustments on recruitment.
- More examples of reasonable adjustments.
- The employer's obligation applies only if he knows or could reasonably be expected to know that the relevant person has a disability and is likely to be placed at a substantial disadvantage (but see Y v Calderdale Council case).
What other adjustments might an employer have to make?
- Other possible adjustments (subject to the reasonableness test) include but are not limited to:
- allocating minor or subsidiary duties (eg possibly answering the phone) to someone else;
- arrangements for phone calls, such as a separate place to make them if you find it difficult in an open plan office;
- some time off during working hours for speech therapy (example below); or
- perhaps modifying a script of words you are supposed to say so that you can say them OK.
- More examples of reasonable adjustments.
- The employer's obligation applies only if he knows or could reasonably be expected to know that the relevant person has a disability and is likely to be placed at a substantial disadvantage.
Are there any exclusions?
- The armed forces are excluded.
- There are also certain exceptions relating to disabled charities and supported employment.
- Various other exemptions that existed before 1st October 2004 no longer apply - so employers with less than 15 employees are no longer exempt, and various occupations excluded before that date are now covered by the DDA, including prison officers, fire-fighters, police officers, and offers of partnership.
What if I am not an employee of the relevant person?
- Self-employed people who contract personally to do work are also included in the employment provisions, as are apprentices.
- There are "contract worker" rules which are worth checking if you face discrimination by someone who is not legally your employer, for example if you are employed by an employment agency. The rules may apply to you even though you are not an employment agency worker. (More on the contract worker rules...)
- There are special anti-discrimination rules to cover various non-employment situations. There are special rules for eg office holders, partnerships, barristers/advocates and certain practical work experience.
- There are rules against discrimination by trade organisations such as trade unions, employers organisations and professional institutions.
- There are rules against discrimination by qualifications bodies such as the General Medical Council, the Law Society, the Public Carriage Office, or CORGI.
- There are special rules on discrimination against customers of 'employment services'. The rules give stronger protection than the normal goods and services rules, so as to comply with the European Framework Employment Directive. Employment services include vocational guidance, vocational training, and some other services.
- In December 2005, new rules protecting councillors came into effect.
If there is discrimination
- You can approach a citizens advice bureau, Law Centre, solicitor or trade union - see sources of help and advice.
- Depending on the situation, you might use the employer's grievance or appeals procedure. Since 1st October, 2004, statutory "grievance procedures" are now more important - see Employment Act 2002.
- If you want to take it to court, the complaint will go to an employment tribunal - the time limit is generally three months.
- The questionnaire procedure and (when proceedings have commenced) discovery of documents can help in collecting evidence.
- ACAS can be brought in to conciliate.
- 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 £25,000.
- You can call or email the Equality and Human Rights Commission helpline (the EHRC has taken over from the Disability Rights Commission). Also, the Equality and Human Rights Commission can sometimes assist in bringing cases.
Are there any decided cases on employment and stammering?
These are some tribunal decisions I know of specifically on stammering, but there are doubtless others:
- Wakefield v HM Land Registry (July 2007) - an employment tribunal decided that a person who had a stammering problem in interviews should have been allowed to give written responses to interview questions, even if the job required oral skills. The decision is under appeal.
- 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, but 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, but this was not sufficient reasonable adjustment and the applicant won the case.
- Alderson v Walkers Snack Foods (Dec 2001): allegations of harassment/verbal bullying of a person who stammers were rejected by the tribunal.
- Shaughnessy v The Lord Advocate (Feb 2000): a person who stammers was rejected for a job, but 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 (Apr 2002): a case brought by a person wanting to be a driving instructor was dismissed because no employment was involved.
- Bennett: not a DDA case, but a supervisor making 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 (Feb 2006): claim 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 does not determine the outcome of the case.
However tribunal decisions give only part of the picture. People who stammer have used the DDA successfully without the matter going as far as a tribunal or court. For example:
- Reasonable adjustment settlement (2004) - involving amongst other things set-up of interview room for use of 'text to speech technology', difficulty in giving full answers with stammer, and weighting of information on 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
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.
Further information
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Last updated 2nd August, 2008
