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Services: Right to be heard

In general, a service provider should wait and give you time to speak, if they would listen to someone speaking fluently. This applies whether they are a shop assistant, a person speaking to you on the phone, or anyone else providing a service. (Also: Further examples of what is likely to breach the Equality Act rules on services.)

Legal position

If a service provider fails to give time to speak, this is usually likely to be a breach of the Equality Act as discrimination arising from disability, unless the service provider can show objective justification. In outline, this involves showing that their action was a proportionate means of achieving a legitimate aim.

Proving justification will normally be difficult in this situation. The service provider would need to show not only a legitimate aim, a real need, but also that the aim was sufficiently important to outweigh the discriminatory effect on the person who stammers.

The service provider also has a potential defence if it did not know of the disability and could not reasonably be expected to know. However, that seems unlikely to apply in most cases where the individual is having difficulty communicating.

There will be some situations where not giving someone time to say what they want could be justified: see the example below of a plane stewardess in the emergency evacuation of a plane. It would be for the courts to draw the boundaries.

Other types of claim under the Equality Act could also apply here. In some cases there will be direct discrimination for which there is no objective justification defence. It could be direct discrimination if, because of the stammer, the service provider treats the person worse than they would treat someone else who is taking longer to communicate.

The reasonable adjustment duty could also apply.

See also below Can service provider require use of an alternative to speaking?

Examples

Case study
The main problem I have come across is people putting the phone down on someone who stammers, for example when they phone up to check that a shop has something in stock, or to book a restaurant. This will be within s.29 EqA as a refusal to provide service, and/or providing a worse standard or manner of service to a person who stammers. It could be 'direct discrimination' for which there is no justification defence. If it is instead 'discrimination arising from disability' (perhaps if the service provider would put the phone down on anyone taking that length of time) the question would arise whether the service provider can show objective justification, namely that putting the phone down on the person stammering was a proportionate means of achieving a legitimate aim. It will normally be very difficult to show this! The lack of knowledge defence may apply in some cases, such as where the service provider picks up the phone and hears only silence, but often not. Other types of Equality Act claim could apply too - eg it might be argued to be a reasonable adjustment to wait a certain time if a service provider initially hears silence on the phone. Compensation for injury to feelings would probably be available if one wanted to seek it.
(My Telephone page brings together Equality Act issues to do with the phone.)

From the Services Code, paragrarph 6.7
"A disabled person is refused service at a bar because they are slurring their words, as a result of having had a stroke. In these circumstances, the disabled person has been treated unfavourably because of something arising as a consequence of their disability. It is irrelevant whether other potential customers would be refused service if they slurred their words. It is not necessary to compare the treatment of the disabled customer with that of any comparator. This will amount to discrimination arising from disability, unless it can be justified or the bar manager did not know or could not reasonably be expected to know the person was disabled."

Example:
A plane stewardess is supervising the emergency evacuation of an aircraft. It might be justified to insist that a woman who stammers leave the plane now rather than finishing something she is trying to say to the stewardess. It would be for consideration whether or not it is appropriate for the stewardess to try and ascertain what the passenger is trying to say - eg that she has left a child on the plane? If the stewardness takes time to communicate it may well be justified given the exceptional urgency to use measures such as having the passenger write down a few words, or seeing if it works to ask her questions with 'yes'/'no' answers.

Can service provider require use of an alternative to speaking?

Can a service provider insist that a person who stammers write down what they want to say, or get someone else to phone or speak on their behalf, or to email in?

If the person who stammers would prefer to speak themself, this is likely to be subjecting the person to a detriment within s.29 EqA. Assuming it is not direct discrimination, the service provider will have a defence if they show objective justification, namely that it is a proportionate means of achieving a legitimate aim. However, as outlined above the objective justification test is not an easy one to meet. It will depend on the facts, but in most cases a service provider would probably find it difficult to show objective justification for not allowing the person to speak.

The previous paragraph assumes a claim for discrimination arising from disability, where the objective justification defence applies. The reasonable adjustment duty may also be relevant. If the alternative put forward by the service provider involves a cost to the customer, note that under s.20(7) EqA a person subject to the reasonable adjustment duty is not entitled to require the disabled person to pay to any of the costs of complying with the duty (unless the law expressly says otherwise.)

On inviting someone to write a note as an alternative to speech, see also Making services accessible: Writing notes?

As regar

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Last updated 7th January, 2012