Reasonable adjustments - Speech therapy and self-help

This page gives possible examples of reasonable adjustments by employers in relation to speech therapy, going on courses to help stammering, or self-help meetings. What is appropriate and reasonable will depend on the circumstances. For background, and examples of reasonable adjustments more generally, see Examples of reasonable adjustments.

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?

"EqA" or "Equality Act" means the Equality Act 2010 (link to legislation.gov.uk)

The "Employment Code"
means the 2011 Equality Act Code of Practice on employment (pdf, link to EHRC website), which came into force on 6th April, 2011. (More on EqA Codes of Practice)

Time off

There have been instances where employers gave paid time off for a speech therapy course or other stammering course:

One employee was given paid time off for an intensive course totalling 3 weeks - two weeks followed by a period at work, then a final week.
In another instance ('Time off work for stammering course') paid time off for a stammering course requiring a two day absence was given after instigating the employer's grievance procedure.

"It's fine if you stammer"

After an employee had told her manager how her speech therapy course went, her manager said: "It's very good that you did the course, but you don't have to. It's fine if you stammer." The employee really appreciated this.

It might also be reasonable to allow leave (paid or unpaid) for regular speech therapy sessions. Some also find self-help group meetings very beneficial and time off might be reasonable to attend those, or a British Stammering Association conference or Open Day.

As an alternative to trying to use the Equality Act, a person who stammers could ask his GP for a note saying he needs time off for 'treatment'. However, letting the employer know it is for stammering may help in having it treated as disability leave (below) rather than general sick leave.

Employment Code on time off

The Employment Code para 17.23 says: "Disabled workers may sometimes require time out during the working day to attend medical appointments or receive treatment related to their disability... If, for example, a worker needs to take a short period of time off each week over a period of several months it is likely to be reasonable to accommodate the time off."

Employment Code, para 6.33:
An employer allows a person who has become disabled more time off work than would be allowed to non-disabled workers to enable him to have rehabilitation training. A similar adjustment may be appropriate if a disability worsens or if a disabled person needs occasional treatment anyway.
(There is a similar example at para 17.24 Employment Code.)

Paying for a course

In some areas of the UK, speech therapy is available free under the NHS, but sometimes it is not, or there may be other reasons to pay for a course (e.g. City Lit, McGuire Programme, Starfish Project, NLP courses) or for a private speech and language therapist.

Some employers have paid for speech therapy courses or other stammering courses:

An example is www.stammering.org/jmann.html. There the employer also paid for a place at the British Stammering Association conference.
In another example, ('Time off work for stammering course') the employer paid half the cost of a stammering course and the union paid the other half.

For information on therapy and courses available, see the BSA website: Adult therapy and courses or call their helpline.

Excessive sick leave? Disability leave?

Staff may be worried about being penalised for taking excessive sick leave for stammering treatment.

I know of an example where an employer classed a speech therapy course (for which the employer paid) as 'personal development'. This took it out of the employer's 'sickness' policy. The employee had identified it as a training need during an exercise to identify training needs for the team. It is possible that a speech therapy course was classified similarly in www.stammering.org/jmann.html.

Otherwise, one should look at the particular organisation's sickness policy. By way of some general points:

When taking attendance management action against a worker, employers should ensure that they do not discriminate in relation to disability. Accordingly, it will make sense for employers to distinguish in their records between disability-related absences and general sickness absence. (Employment Code para 17.19)
Treatment for stammering should generally qualify as disability-related. Where therapy is being sought, the stammer is particularly likely to be a 'disability', as its effects on normal day-to-day activities will usually be more than 'minor or trivial'.
Whilst even disability-related absences may sometimes have adverse consequences, they are subject to the protections of the Equality Act and should not necessarily be dealt with in the same way as general sickness absences. In particular, an employer's sickness policies can be subject to:
- the reasonable adjustment duty. Say under the policy a dismissal procedure is triggered by a certain amount of absence. It might well be a reasonable adjustment for the employer to have to discount, at least to a certain extent, absence(s) caused by a disability (see Employment Code below) ; and
- the rules on 'discrimination arising from disability' (and perhaps 'indirect discrimination') under Equality Act 2010, where the issue will often be whether the employer can show its action was a proportionate means of achieving a legitimate aim (the objective justification defence).

Sick pay

I say something about this despite the fact that it should not be of great relevance to stammering.

Before Equality Act 2010, courts have normally been reluctant to find that sick pay should be extended by reason of disability-related absence.

See Disability discrimination: No obligation to extend sick pay as a reasonable adjustment (link to addleshawgoddard.com) concerning the 2007 decision in O'Hanlon v HMRC. The Court of Appeal there said, "In our view, it will be a very rare case indeed where the adjustment said to be applicable here, that is merely giving higher sick pay than would be payable to a non-disabled person who in general does not suffer the same disability related absences, would be considered necessary as a reasonable adjustment." Another example of a case on sick pay is RBS v Ashton (link to bailii.org), 2010, where there was a policy of indefinite discretionary sick pay.

The Employment Appeal Tribunal in RBS v Ashton (link to bailii.org) considered that on the facts of that case (unlike in the O'Hanlon case) the reasonable adjustment duty did not apply as there was no substantial disadvantage compared with other workers. Even if that is right, a claimant might now argue they were treated 'unfavourably' under s.15 EqA (discimination arising from disability), without the need for a comparision with other workers, so that the issue would be whether the employer can show the objective justification defence applies.

A claim for adjustment of sick pay which succeeded even before Equality Act 2010 was Nottinghamshire County Council v Meikle (link to bailii.org), [2004], Court of Appeal. Here the claimant had requested reasonable adjustments which were not made, and the reduction in sick pay flowed from the employer's failure to make these.

Employment Code and tribunal case example on disregarding disability absence

Employment Code para 17.20 says "Employers are not automatically obliged to disregard all disability-related sickness absences, but they must disregard some or all of the absences by way of an adjustment if this is reasonable. If an employer takes action against a disabled worker for disability-related sickness absence, this may amount to discrimination arising from disability..."

From the Employment Code, para 19.5
A disabled worker periodically requires a limited amount of time off work to attend medical appointments related to the disability. The employer has an attendance management policy which results in potential warnings and ultimately dismissal if the worker's absence exceeds 20 days in any 12-month period. A combination of the worker's time off for disability-related medical appointments and general time off for sickness results in the worker consistently exceeding the 20 day limit by a few days. The worker receives a series of warnings and is eventually dismissed. This is likely to amount to disability discrimination.

19.6 Based on the facts in the example above, it is very likely to have been a reasonable adjustment for the employer to ignore the absences arising out of the worker's disability or increase the trigger points that would invoke the attendance policy. By making one or both of these adjustments, the employer could have avoided the possibility of claims for both a failure to make adjustments and discrimination arising from disability.

From the Employment Code, para 19.17
A call centre re-tenders for a large contract and has to reduce its price to secure the work in the face of low-cost competition from overseas. The employer therefore decides that attendance records are a particularly important selection criterion for redundancy. This has the potential to disadvantage disabled employees who require additional time off for medical treatment. It is likely to be a reasonable adjustment to discount some disability-related sickness absence when assessing attendance as part of the redundancy selection exercise.

From the Employment Code, para 6.33
Because of his condition, a man with an autoimmune disease has taken several short periods of absence during the year. When his employer is taking the absences into account as a criterion for selecting people for redundancy, they discount these periods of disability-related absence.

An example of an employment tribunal case is Lawton v Secretary of State for Work and Pensions (Jobcentre Plus) reported in the February 2011 Equality Law Reports (link to equalitypublishing.co.uk). Jobcentre Plus had an attendance policy which was usually triggered on an absence of eight working days in a rolling 12 month period. The policy said this could be increased to take account of additional absences directly linked to a disability or underlying medical condition. Most of the claimant's absences related to his disability. He argued that the employer had not discounted these sufficiently, and the employment tribunal agreed. The tribunal said that not discounting disability-related absences "effectively denied the claimant the full opportunity to have ordinary time off sick absence unconnected to his disability." Of course, the employer need only discount disability-related absences so far is it is reasonable for it to have do so.