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.
Link to BSA website:
- BSA's Employment page has guidance on matters beyond your legal rights.
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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?
Should I tell the employer I have a stammer?
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?
How can the 'two ticks' 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. (Areas covered...)
- Victimisation for getting involved in a claim is normally also 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, it can sometimes be treated as constructive dismissal, as claimed (unsuccessfully) in the Alderson case. (See alternatives to the DDA)
What counts as "discrimination"?
- Direct discrimination: this will include, for example, treating someone less favourably (e.g. rejecting them for a job) simply because of prejudice. It is also likely to include stereotyping; if an employer assumes that a person with a stammer could not do a particular job, without looking at the person's individual abilities, this is likely to be direct discrmination. The employer has no 'justification' defence to direct discrimination (contrast disability-related discrimination below). More on direct discrimination...
- Reasonable adjustments: it will generally be discrimination if the employer fails to take reasonable steps to modify any provision, criterion or practice which puts you as a person who stammers 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 related to stammering failed in the Alderson case, but only because the tribunal thought there had been no harassment. More on harrassment...
- 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 usefulness, at least for the time being. Unless there is 'direct discrimination', claimants are likely to try and re-frame their claim as one for reasonable adjustments (e.g. discussion on dimissals) or harassment, and claim under that head as well as for drd.
- Drd applies broadly where an employer treats you less favourably for a reason 'related to' your disability, compared with a person to whom the reason does not apply. However, according to the Malcolm case this may have roughly the same scope as direct discrimination.
- Unlike direct discrimination, for drd the employer has a defence if he shows the treatment is 'justified', i.e. that his reason is
- "material to the circumstances of the particular case"; and
- "substantial".
- In applying the 'justification' defence, any reasonable adjustment that the employer ought to have made is taken into account.
- More on disability-related discrimination...
What does this mean in practice?
- The Malcolm case has limited the possibility of claiming for less favourable treatment related to one's stammer, e.g. if one is turned down for a job. However, stereotyping (if the employer has not considered the individual's actual abilities) is likely to be unlawful as direct discrimination, and it may be possible to reframe other claims as being for reasonable adjustments or harassment.
- In any event, even before the Malcolm case, just about all the successful claims I know of by people who stammer were for reasonable adjustments - particularly regarding selection procedures (below). One reason for this may well be that (even with a rule for shift in burden of proof), it can be difficult to show that the reasons for one's being turned down for a job were related to the stammer, and also the 'justification' defence was not a high hurdle for employers.
- You may also 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 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, the opportunity to supplement oral answers with writing, or - even if the job requires oral skills - the option to give written answers (see for example the Y and Wakefield cases below)
- 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 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 be needed?
- Other possible adjustments (subject to the reasonableness test) include but are not limited to:
- allocating minor or subsidiary duties to someone else, e.g. answering the phone;
- arrangements to help making 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.
- Many 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.
Should I tell the employer I stammer?
This 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 scope of the duty to make reasonable adjustments will sometimes be reduced (or in some cases it may not apply at all) where the employer has not been told about the stammer. Also as a practical matter, if you want reasonable adjustments to be made to the recruitment process they are probably more likely to happen if you raise the issue with the employer in advance. (More on telling of need for adjustments in advance...)
- having a disability may entitle one to a interview under the 'two ticks' guaranteed interview scheme (though this is not a legal issue.)
- that an employer knows or ought to know a person has a disability is relevant in whether they are liable under the DDA for treating the person less favourably - Malcolm v Lewisham LBC. However, given that the same case has severely restricted in other ways the scope to claim for less favourable treatment, I think employer's knowledge is unlikely to be a big issue at present.
- if the employer has actually asked the job applicant a question on disability or health etc, such as in the application form or a medical questionnaire, and the job applicant answers it falsely, the case of Cheltenham Borough Council v Laird (2009) suggests that the employer may be able sue for damages (if he suffers any). The same applies even if, without being asked, a job applicant makes false statements. However, I expect any such claim by an employer would be rare in practice.
Are there any exclusions from the DDA?
- The armed forces are excluded.
- There are also some exceptions relating to disabled charities and supported employment.
- 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 DDA, as are various occupations excluded before that date, including prison officers, fire-fighters, police officers, and offers of partnership.
- Volunteers are covered only to a certain extent.
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, or if you are seconded. (More on the contract worker rules...)
- There are special anti-discrimination rules to cover various non-employment situations. There are special rules for e.g. office holders, partnerships, barristers/advocates, local councillors, and certain practical work experience. (More on scope of employment rules...)
- 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, and 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 a European Directive. 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 has taken over from the Disability Rights Commission). Also, the Equality and Human Rights Commission can sometimes 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. Sometimes it is necessary to start an internal grievance before bringing a tribunal claim. That rule is being phased out, but in any event compensation awards can be adjusted for not following good practce. More on grievance and disciplinary procedures...
- 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 £30,000.
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 (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.
- 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. However, 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: 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): 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.
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); this involved amongst other things 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 'two ticks' scheme help?
People who stammer may want to watch out for the 'Two ticks' Positive about disabled people' symbol. This scheme is separate from the DDA. Amongst other things, employers who have signed up to it guarantee disabled people an interview if they meet the minimum criteria for the job vacancy. More about 'Two ticks' Positive about disabled people'....
Further information
On my site
External websites
For web links generally on stammering and disability discrimination see the links page.
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© Allan Tyrer 1999-2010
Last updated 5th January, 2010
