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C v Spencer & Arlington

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Last updated 26th June 2020.

The employment tribunal rejected a claim that an employee had a stammer which (he said) started in adulthood. He argued before the tribunal that the stammer was why he had raised in voice in a meeting, but he gave a different explanation at the time. He had not told the employer he had a stammer. Also the tribunal said that none of the employer’s witnesses had ever perceived a stammer.

Employment Tribunal, December 2019. Link to the full Employment Tribunal decision (gov.uk).

Facts

The claimant was a care worker for a vulnerable young adult (CF) who had autism and other conditions.

At a meeting with a member of staff in July 2015, the claimant had (said the tribunal) “started shouting loudly and became aggressive towards” his colleague. The employer advised the claimant to be aware of his tone and manner, and that further such behaviour would be dealt with formally. (para 26 of the tribunal decision)

In another meeting with a manager in December 2015, the tribunal found that the claimant “shouted at her, saying such things as ‘shut up’ and ‘no you are wrong’'”. The employer held a disciplinary meeting to consider this, at which the claimant was accompanied by a trade union representative. The claimant was given a final written warning, which was upheld on appeal. The claimant’s position was that he had not raised his voice. He said his everyday voice was deep and hoarse, and the intention of the tone he used was to have management grasp his points and take vital action in the best interest of the client. The tribunal said “At no point in that [disciplinary] meeting did the claimant assert that he had a stammer, ask for adjustments, or claim that a speech impediment was the cause of his behaviour.” The claimant sought to explain his tone in a way which made no reference to a stammer. (para 32-39)

In 2016 there were further disciplinary proceedings against the claimant, which resulted in him being dismissed. The key allegations in these were manipulating CF for whom he was caring, and bullying and threatening colleagues. The claimant was accompanied at the disciplinary hearing by a trade union representative, but was not allowed to be accompanied at an investigatory meeting which preceded it. The tribunal said that at no stage did the claimant assert that he had a stammer or was being disadvantaged by not being accompanied. (para 44-55)

The claimant brought claims for unfair dismissal, whistleblowing, race discrimination, disability discrimination. and breach of contract.

Held by the employment tribunal: There was no disability discrimination, and indeed all the claims failed except for unfair dismissal. The tribunal was not persuaded he actually had a stammer.

Unfair dismissal

The tribunal held there was unfair dismissal due to a procedural defect; the tribunal described the disciplinary hearing itself as “shambolic”. However the tribunal found the employer would have dismissed the claimant even without the defect, and effectively the claimant was not entitled to compensation. (para 91-102)

Disability claims

The disability claims brought by the claimant under the Equality Act were for:

He said he had a stammer. He had not told the employer of the stammer, but argued that the employer ought reasonably to have known of it as his shouting or behaving in a manner perceived as angry should have resulted in a referral to Occupational Health or the employer investigating matters further.

Did the client have a stammer / disability?

The first question was did the claimant have a disability. The claimant asserted that at the material time he had a severe stammer, which he blamed on the employer’s treatment of him. He said he became aware of it in 2013 when his union representative told him he was stammering. (para 16)

The tribunal held that the claimant had not shown he was disabled by reason of a stammer within the Equality Act at the relevant time. The tribunal said (para 121):

“It was the single joint expert’s opinion that the claimant either exhibits a psychogenic stammer or is malingering. Both are very rare diagnoses and the single joint expert is unable to say which is the case with the claimant. The claimant has seen another speech therapist and is scheduled to begin stammering group therapy. However, all of this was arranged after he had commenced proceedings and so ultimately takes his case no further in our judgment. We are unable to say with any confidence whether the claimant is malingering or not, in particular given our findings on his credibility, and his inconsistent account of when his stammering began. It is sufficient to note that the burden lies on the claimant to prove on balance that he has a disability and we find that he has not.”

The tribunal said elsewhere (para 17) that it did not accept the claimant had a perceptible stammer. It said that none of the employer’s witnesses ever perceived a stammer. Nor had the claimant ever asserted at the time that he had a stammer. Also the claimant had been inconsistent about when his stammer started, for instance stating on 21 September 2016 that he had been stammering for 2 years, but on 16 November 2016 that it had started 3-4 years earlier.

In any event, the employer could not reasonably have known of the disability

Even if the claimant did have a stammer, the employer would not be liable for a failure to make reasonable adjustments if it did not know and could not reasonably have been expected to know that the claimant was disabled and likely to be placed at a substantial disadvantage. The tribunal held that the employer did not know and could not reasonably have been expected to know in this case. The tribunal said (para 123):

“It was argued that the claimant’s behaviour in meetings ought to have placed the [employer] on notice of his disability. However, we reject any suggestion that the claimant shouting or behaving in a manner perceived as angry should have resulted in a referral to Occupational Health or the [employer] investigating matters further. On the contrary, we accept that the [employer] was entitled to suggest that the claimant seek help with anger management and leave the matter there. The claimant failed on every opportunity to bring to the [employer]’s attention any difficulty he had speaking or that he was placed at any disadvantage as a result.”

Reasonable adjustment claim

The claimant was accompanied by a trade union representative at the disciplinary hearing in 2016. However the employer had not allowed him to be accompanied at an investigatory meeting which preceded it. The claimant argued it would have been a reasonable adjustment to allow him to be accompanied by a colleague or representative so that he could be assisted in explaining his version of events.

The tribunal did not have to consider this claim since it had held he did not have a disability. The tribunal commented however: “We would add that the claimant was placed at no particular disadvantage by attending investigatory meetings unaccompanied in any event. Neither was he placed at any particular disadvantage by any failure on the [employer’s] part to place the claimant on notice before each meeting of the nature or substance of the meeting, or being given the questions in advance in writing, as he alleged during this hearing.” (para 124)

Harassment related to a disability

The claimant argued that various actions of the employer were disability-related harassment contrary to the Equality Act, including the verbal warning in July 2015, the final written warning in December 2015, and various aspects of the disciplinary proceedings in 2016.

The tribunal said it did not have to consider this because it had already held the claimant did not have a disability.

However even if the tribunal had accepted that the claimant was disabled and that his shouting was a manifestation of the disability, the tribunal said it would still have found that the employer’s consequential treatment of him was not harassment. The employer was not aware that the claimant was disabled and behaved reasonably in disciplining him for his behaviour. Therefore, it was not reasonable in the circumstances for the alleged treatment to have had the proscribed effect, namely violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. (para 125-127)

My comments

Stammering which starts in adulthood

Most stammering, known as ‘developmental stammering’ starts when one is a young child.

Stammering which starts in adulthood is much less common. There are various reasons why an adult can start to stammer. One is that a stressful event, or prolonged, intense stress over time can sometimes result in stammering. Stammering which starts for this reason is known as ‘psychogenic stammering’. See ‘Developmental & acquired’ on Variations & complications (stamma.org). The expert in this case (probably a speech and language therapist) said that if the claimant did genuinely have a stammer, she thought it was a psychogenic stammer.

The expert said both psychogenic stammering and malingering are “very rare diagnoses” and she was unable to say which was the case with the claimant. Note however that Stuttering and Cluttering: Frameworks for Understanding and Treatment by David Ward, 2nd edition, 2018 in section 17.4 says:

“Over the last 10 years I have seen an exponential increase in clients presenting with [psychogenic stuttering] in my clinic and I suspect that other clinicians who have an adult caseload have observed a similar situation.”

Hidden effects?

To avoid adverse reactions to stammering, it is common for people who stammer to try to hide it as much as possible. Indeed some hide it to such an extent that people around them do not realise they have a stammer. See Hiding the stammer>How people hide. (An example of someone developing avoidance and evasion techniques with a stammer which started in adulthood is Out of the blue (archive of stammering.org 2008, and see Waking up one day with a stammer (stamma.org) 2020, on difficulties with people she knew before her psychogenic stammer began.)

Similarly some people who stammer are very reluctant to talk about it, or to admit to people (sometimes even to close friends) that they have a stammer.

There is no discussion in the tribunal decision of whether that might have been the case here. One might expect it to be mentioned as a possible issue in the joint expert report, of which the tribunal gave only a very brief account.

Decision that employer ought not reasonably to have known of disability

Should shouting or “aggressive” behaviour be enough to put an employer on notice that it should enquire into whether the worker may have a disability – perhaps a mental health disability if not a stammer? It can at least be a factor: eg the example at para 5.15 of the Employment Code, and Department for Work and Pensions v Hall (bailii.org) 2005, EAT (paragraphs 9 and 23-24).

Another case on stammering where an employee was accused of “talking too loudly” but insisted his loudness was not aggressive but simply a result of his stammer is M v Asda, 2012.

Even if it had been reasonable for the employer to refer the claimant to Occupational Health or to make further enquiries, it would have been relevant whether the claimant would have co-operated and disclosed the stammer:

A Ltd v Z (bailii.org), Employment Appeal Tribunal (EAT), 2019
The claimant was dismissed for poor attendance and time-keeping. These resulted from mental and psychiatric impairments. However she gave physical ailments as the reasons for her absences from work, and had not disclosed her mental and psychiatric impairments to the employer. The EAT confirmed that the employer did not have constructive knowledge of her mental health disabilities. The tribunal found that on the facts, even if the employer had made further enquiries, the claimant would still have suppressed information concerning her mental health problems. She would not have entertained any proposal for an Occupational Health referral or other medical examination that might have exposed her psychiatric history.

20th anniversary of stammeringlaw, 1999-2019