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These pages do not apply outside the United Kingdom.
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| Home | Overview | Disability | Employment | Services | Education | Benefits | Business | Advice | Links | More... |
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These pages do not apply outside the United Kingdom.
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This page discusses how the 'justification' defence may apply to stammering. 'Justification' is a defence to disability-related discrimination. WARNING: this page may be of very limited relevance at present - the Malcolm decision means there may in practice be very little to which the defence can apply! 'Justification' can only apply if a person has brought themselves within 'disability-related discrimination', despite the Malcolm case. There may be scope to use the reasonable adjustment duty instead, see particularly Reasonable adjustment rules: Dismissal.
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The "Code"
means the 2004 Code of Practice: Employment and Occupation (pdf file on EHRC website). Section references |
'Justification' is a defence to disability-related discrimination. For the employer's treatment of the person to be justified the reason must be both
The Code of Practice (para 6.3) says: "This is an objective test. 'Material' means that there must be a reasonably strong connection between the reason given for the treatment and the circumstances of the particular case. 'Substantial' means, in the context of justification, that the reason must carry real weight and be of substance." This reflects comments by Arden LJ in Jones v Post Office (2001).
Also, the employer needs to look at whether a reasonable adjustment could be made to obviate the problem before deciding that the treatment is justified (see the employment page on reasonable adjustments).
There is more on the technical side on this more detailed justification page.
The justification test, including the meaning of "material" and "substantial", has now been discussed by the Court of Appeal, in Jones v Post Office. The Court of Appeal held that a tribunal could not substitute its own assessment for that of an employer as to how long it was safe for a diabetes sufferer to be on driving duty. The employer had made a risk assessment, the decision was taken on the basis of appropriate medical evidence, and it was not an irrational decision as being beyond the range of responses open to a reasonable decision maker.
This means that at least in some cases where an assessment is to be made - and perhaps in all justification cases - the employer will be allowed an amount of leeway without the employment tribunal being able to substitute its own view of the matter. However, the decision does not seem to allow an employer simply to proceed on the basis of an assumption without looking into it properly.
The employer can't act merely out of prejudice ("I don't want stammerers here"). This is likely to be direct discrimination, but would be very difficult to 'justify' in any event.
Making steretyped assumptions, without looking at an individual's particular abilities, may well be direct discrimination and so unlawful whether or not the 'justification' defence would apply. However, ill-founded assumptions could also fail the justification test on the ground of not being 'substantial' (see the example on diabetes and night-time vision given by Arden LJ in Jones v Post Office). Where an assumption is arguably true as a generalisation but the individual's own abilities have not been looked at, it may be easier to argue direct discrimination.
Examples of unjustified assumptions which would very likely be unlawful are: "Stammerers are stupid, aren't they?", or assuming that a person who stammers thinks less quickly.
Some assumptions are less obvious. For example, where a job requires good or excellent communication skills, some people see a stammer as being inconsistent with that. Like anyone else, some people who stammer do, and some do not, have good communication skills. There is an article about this which is well worth reading: Is fluency a communication skill? (link to BSA website).
Employers may make assumptions about how a person who stammers would cope. I heard of one case where a person with a stammer was turned down for a job expressly because the employer was worried the person would not be able to deal with difficult customers, due to the stammer. The person actually had a track record of handling all types of client perfectly well. This could now be a case of "direct discrimination" (on the basis that a person without a stammer would not have been rejected without adequate consideration of his individual abilities), or possibly of the employer's reason not being "substantial", ie not carrying real weight and being of substance.
So beware of assumptions. Sometimes a person who stammers may even make unjustified assumptions about himself.
The type of job, the degree of the stammer, when it occurs - these will all obviously be relevant in any particular case. But what will also be relevant is one's view of how far stammering is acceptable in different situations, and people's opinions may well differ on this. For example, an employer may say: "I don't want you stammering with my customers; that's not the image I want to project". Is that acceptable? Legally, I think the main questions are:
('Materiality' as defined by Arden LJ in the Jones case seems less likely to be helpful.)
How far stammering is acceptable in different situations is a key question the courts will have to decide in particular cases, if cases reach them. Hopefully an attitude of "I don't want you stammering with my customers" will not generally be acceptable, though it depends ultimately on the degree of the stammer, the needs of the job, and (stammer or not) that person's communication skills.
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Code of Practice: Employment and Occupation. Para. 4.9 |
On the other hand, it could be argued that a stammer is different from a disfigurement in that (in some cases) a person who stammers will (sometimes at least) take longer to deal with customers or others. Or in some cases people may (sometimes) find it more difficult to understand what the person who stammers is saying. Presumably the particular circumstances have to be considered, including the stammer and the interests of customers and the business. However, in many jobs time is not of the essence (see below as to jobs like air traffic controlling where it is). People do stammer in customer service positions. I have stammered as a solicitor in a leading firm providing "Rolls Royce service" to clients, as did one of my colleagues who is still there. My partner is a senior customer services officer in a library who has a stammer - she is in charge of customer service at six libraries. And people stammer in many other jobs. The fact that people who stammer do have jobs dealing with the public, and indeed in some cases have had them well before the introduction of the DDA, may reduce any scope for justifying the non-employment of people who stammer in positions such as this.
Incidentally, the more people who stammer who get into positions such as this - and the numbers may increase further through the application of the DDA and general disability awareness - the more acceptable stammering may become in the eyes of other people, further reducing any scope for justifying the non-employment of people who stammer in positions such as this.
It is important to bear in mind that there are limits. There are people whose communication is so severely impaired by their stammer that it would clearly be justified not to give them jobs where oral communication is important, unless and until their fluency improves (or unless a reasonable adjustment can be made). I don't try to say exactly where the line should be drawn.
A useful approach for employers is to focus on the person's communication skills in the relevant work situation (good, or not so good) rather than the stammer (see above).
What about jobs like air traffic controllers, airline pilots, where safety is a key factor?
Well we do have a stammering air traffic controller (link to BSA website) in the UK. I believe he doesn't stammer when flight-controlling, helped by the fact that he has been allowed to change certain words he has problems saying (see "reasonable adjustments" on the Employment page).
I have also heard of a stammering airline pilot in Australia, who I believe again doesn't stammer when actually flying.
A court in Ohio held that a stutterer was entitled to be a firefighter, where "clear, concise, and timely communication in the context of fighting a fire is an essential function of the job" . On the facts, he was able to meet that requirement while doing the job, though he stuttered more severely at an interview.
So there are jobs where fluency may be important, but no one should assume that a person with a stammer cannot get the required degree of fluency in the relevant situation.
As regards the 'justification' test, an tribunal is likely not to disagree with a risk assessment which is properly conducted on the basis of appropriate medical evidence, provided that it produces an answer which is not irrational (Jones v Post Office). However, from October 2004, an employer also needs to avoid direct discrimination.
In Whittick v British School of Motoring in April 2002, a person who stammers was turned down as a driving instructor. The employment tribunal dismissed his complaint because no employment was involved, and so did not get on to consider the safety issues.
Last but not least, the Code says:"...the Act does not prohibit an employer from appointing the best person for the job" (para 3.16, see also para 7.4). The employer does not have to discriminate in favour of a person who stammers.
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© Allan Tyrer 1999-2004
Last updated 4th December, 2004 (limited update to introduction 4th May 2009 for Malcolm case)
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