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C v Menzies Aviation

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Last updated 1st February 2022.

The claimant alleged he had been mimicked due to his stammer, and claimed disability discrimination. This was a preliminary decision on whether his stammer was a disability within the Equality Act. The tribunal held yes it was. Its effect was much more than trivial. While – ultimately – the claimant might be able to express himself clearly, his communication was marked by his stammer and framed by the reactions of his audience, with the consequent and significant impact upon him and his day-to-day activities.

Employment Tribunal, 2021. Full decision (gov.uk).

Facts

The claimant was a “customer services agent”. He claimed disability discrimination which allegedly took the form of mimicking him, because of his stammer.

The employer argued that his stammer was not a “disability” within the Equality Act. This was a preliminary hearing to decide whether it was a disability, not whether there was discrimination.

Held: The claimant had clearly demonstrated his stammer had an impact that was much more than trivial. It was a disability within the Equality Act.

Employment tribunal decision

After setting out the meaning of “disability”, the tribunal summarised the evidence given by the claimant:

6. The Claimant had provided an impact statement, as well as a medical assessment report. In his impact statement, he referred to having had a stammer since childhood. He stated: “This impacts my ability to communicate. It takes me longer to communicate what I need to say. I find talking to strangers very difficult to do. If someone does not have patience to listen to me, it can be impossible for me to communicate with them”. He described how, as a result, people would make fun of him, which affected his confidence and mental health. As a result, he would feel very low, be unable to sleep and unwilling to socialise.

7. The supporting report from a Senior Specialist Speech and Language Therapist confirmed this self-description. She said: “I observed [A………] stammering. This took the form of repetitions, restarts, and long pauses, sometimes punctuated by several repetitions of ‘er’, where it took some time for him to get the word out. These dysfluencies will have a significant effect on verbal communication in day-to-day activities, especially with people who lack patience or good listening skills. The stammer did not prevent [A………..] from expressing himself eloquently and clearly”.

The employer’s lawyer seized on this last sentence from the speech and language therapist’s report, and also argued that what was described in the report was no more than minor or trivial.

The tribunal pointed to the stammering example in para D17 of the Statutory Guidance, saying it “could largely have been a description of the Claimant in this case”.

There was no dispute that the claimant suffered from this impairment and had done
since childhood. The only issue was whether his stammer had, at the material time,
a substantial – ie more than minor or trivial – adverse effect on his ability to carry out day-to-day activities.

The tribunal said it would be incorrect to focus upon that one sentence in the speech and language therapist’s report, to the exclusion of everything else. That sentence did not sit easily with the previous sentences (or the rest of the report), when read in isolation. However –

… it is clear that while – ultimately – the Claimant may be able to express himself clearly, his communication is marked by his stammer and framed by the reactions of his audience, with the consequent and significant impact upon him and his day-to-day activities.

12. In the Tribunal’s view, the Claimant has clearly demonstrated an impact that was much more than trivial, as described in his impact statement. Therefore, the Tribunal concluded that the Claimant was disabled by reasons of his stammer at the material time.

Unfair dismissal claim

The tribunal rejected a separate unfair dismissal claim (not alleging discrimination) which he brought eight months later. The tribunal said that claim required a fresh ACAS Early Conciliation Certificate, which he did not have.

Comment

This decision illustrates how, where an employer disputes that the stammer is a “disability”, it can be helpful to have not only a good impact statement but also supporting evidence from a specialist speech and language therapist: Proving disability: impact statements and expert reports.

Drawing parallels between one’s own stammer and the Statutory Guidance, as happened in this case, can also be helpful.

Also this decision (though not a precedent as such) seems to support the argument that adverse reactions from listeners can be relevant in showing that the stammer has a more than minor or trivial effect. It seems to me absolutely right that they should be relevant.

It is not clear what type of disability discrimination claim he brought. For mimicking someone, I’d say the most obvious claim is harassment (and perhaps direct discrimination). Strictly harassment is not “discrimination” but the tribunal may have been speaking loosely when it says he was claiming “disability discrimination”.

In any event, the effect of the tribunal decision is that this claim for disability discrimination through being mimicked can proceed to a full hearing, unless the parties agree to settle out of court.

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