The tribunal decided that the applicant’s speech impediment was a ‘physical impairment’ within the DDA. Since it undisputedly met the other requirements to be a ‘disability’, the applicant was a disabled person within the DDA.
Employment Tribunal, Case No. S/105914/03, March 2004.
The applicant had a speech impediment. This Tribunal decision was a preliminary determination to consider only whether the applicant was disabled within the DDA. The decision did not go on to consider whether he had been discriminated against.
The employer accepted that the applicant’s condition was long term and had a substantial effect on his ability to carry on normal day to day activity. However the employer was not satisfied whether he suffered from a physical or mental impairment, and in particular, if he suffered from a mental impairment, whether the illness was a clinically well recognised condition.
The tribunal found that the applicant had suffered from a serious speech impediment since early childhood. He had been told by his medical advisors that it was genetic but they were unable to identify its organic cause. It was affected by factors such as pain, stress or tiredness. The tribunal also found – and the employer accepted – that its effects were substantial, long term and had an adverse effect on his ability to carry out normal day to day activities.
The arguments
The applicant’s representative said, amongst other things:
- Medical science was such that it could not determine the cause of the applicant’s severe speech impediment. However, it could be considered as a physical or a mental impairment.
- It could be regarded as a mental impairment, with reference to the World Health Organisation’s International Statistical Classification of diseases and health related problems (A8) which at F98.5 states: “Speech that is characterised by frequent repetition or prolongation of sounds or syllables or words, or by frequent hesitations or pauses that disrupt the rhythmic flow of speech. It should be classified as a disorder only if its severity is such as to markedly disturb the fluency of speech.”
- The applicant’s impairment could also be regarded as a physical impairment as it has a physical manifestation, referring to the case of McNicol v Balfour Beattie Rail Maintenance Ltd.
- The phraseology in the applicant’s solicitors’ letter (below) was clumsy. In fact the applicant’s position was that his speech impairment could be regarded as either a physical or a mental impairment.
The employer’s representative argued that:
- The applicant had failed to establish that he suffered from a physical or mental impairment, suggesting rather that his complaint arose from a kind of hybrid of both types of impairment. The applicant’s solicitors had sent a letter saying that medical science was uncertain whether such an impediment should be considered physical or mental, and it would be safe to assume it was a combination of the two. The employer argued it was not open to the applicant to rely on a combination of physical and mental impairment, and he had not established he suffered from an ‘impairment’ within the DDA.
- The fact that the offical code referred to speech impediment and stuttering did not assist the applicant as the relevant parts dealt not with impairment but its effects.
- Though the employer accepted that if an individual suffered from a physical impairment it was not necessary to identify the cause of that impairment, it was not sufficient for the applicant to say that he might be suffering from a physical or mental impairment. There was a legal requirement upon him to establish the impairment from which he suffered, and he had failed to do so in this case.
The Tribunal’s decision
The Tribunal said there is no definition of physical impairment within the DDA. Unlike mental illness, there is no requirement that a physical impairment be “a clinically well recognised illness”. It does not matter that the cause of the illness has not been diagnosed. That was so here; the applicant could not be advised of the exact nature of the cause of his speech impediment beyond being advised there was a genetic component. The applicant’s speech impediment had a clear physical manifestation which was long term, and had a substantial adverse effect upon his ability to carry out normal day to day activities.
The Tribunal obtained guidance from the decision in McNicol v Balfour Beattie Rail Maintenance Ltd, which states:
“It is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the applicant has a physical or mental impairment with the stated effects. Such a decision can and should be made without substituting for the statutory language a different word or form of words in an ambitious and unnecessary attempt to describe or to define the concept of ‘impairment’. The essential question in each case is whether, on sensible interpretation of the relevant evidence, including the expert medical evidence and reasonable inferences which can be made from all the evidence, the applicant can fairly be described as having a physical or mental impairment. The ordinary meaning of the statutory language and of the Guidance issued by the Secretary of State under section 3(1) is sufficiently clear to enable the tribunal to answer the question on the basis of the evidence.”
On the basis of the evidence, the Tribunal concluded the applicant had a physical impairment. He had a serious speech impediment which he had had since early childhood. It had a serious long term physical manifestation. On a sensible interpretation of the evidence, the applicant could fairly be described as having a physical impairment.
The DDA extends to individuals who have a physical impairment even if the cause cannot be identified. The solicitors’ letter did not matter and the Tribunal understood the applicant’s representative’s submission at the hearing that the impairment could be regarded as either physical or mental to be made on the basis that no diagnosis of the cause could be made so the impairment could have a physical or mental cause. But this overcomplicated matters. The fact that the cause is unknown does not preclude a physical impairment from protection under the DDA.
The Tribunal was satisfied on the facts that the applicant had a physical impairment, and that he was a disabled person within the meaning of Section 1 of the DDA.
My comments
1. A ‘disability’ within the DDA is defined as a physical or mental impairment which has a substantial and long-term adverse effect on one’s ability to carry out normal day-to-day activities (more..). The dispute in this case was simply whether the applicant had a ‘physical impairment’ or ‘mental impairment’, or neither. It was acknowledged that the applicant met the rest of the ‘disability’ definition, ie that his impairment had the required substantial and long-term effect. Since the Tribunal found he had a ‘physical impairment’, he was therefore disabled within the DDA.
- The case is not a binding precedent, but used the Court of Appeal decision in McNicol which is. It would have been extraordinary (and would have effects well beyond stammering) if the employer’s argument had been upheld.
- The Tribunal does not expressly say that the applicant’s speech impediment was a stammer. However, the extract given from the International Statistical Classification of Diseases and related health problems does relate to ‘Stuttering [stammering]’.
- This case focussed on speech. It is possible that psychological aspects of stammering, such as avoiding situations, may be seen as a mental impairment. See ‘Physical or mental impairment’.
- It appears to have been accepted by the Tribunal that to fall within the DDA the impairment cannot simply be a hybrid of physical and mental – it must be a ‘physical impairment’ or a ‘mental impairment’. That is doubtful, but in any event it does not seem to mean that an impairment with both physical and mental aspects should be excluded:
It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a mental impairment. The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa. 2011 guidance, para A6 See further ‘Physical or mental impairment’
- The Tribunal seems to imply that a ‘mental’ impairment would not be within the DDA if its cause is unknown. This is inconsistent with the 2011 Guidance – see ‘Physical or mental impairment’ – and with later case law. It is probably based on rules no longer in effect, which applied before 5th December 2005. The pre-2005 rules said that a mental impairment includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness. So even under the pre-2005 rules, the issue was not whether the cause was unknown but whether there was a clinically well-recognised illness, which stammering is.
- The B v Servisair case was mentioned in argument in a case before the Court of Session, Millar v Inland Revenue.
