Coronavirus (Covid-19) - Stammeringlaw - Disability discrimination and stuttering/stammering: Equality Act 2010

Social distancing for Coronavirus can present extra challenges for people who stammer.

In important ways people who stammer are lucky as regards the Coronavirus – stammering as such is not one of the listed conditions placing them at particular risk from the virus.

However the move away from meeting face-to-face – set out in Guidance on social distancing for everyone in the UK (gov.uk) and strengthened in the 23rd March guidance on staying at home and away from others (gov.uk) – can create particular difficulties if one has a stammer. Equality Act obligations still apply, but they are applying to new situations, and what is reasonable or justifiable will be affected by the Coronavirus.

It is early days, but in this altered world how may the Equality Act and similar duties apply to job interviews, working in a job, services including health services, police enforcing the lockdown, courts, and so on?

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Job interviews

More interviews are being done remotely Coronavirus: Job interviews go online as candidates stuck at home (bbc.co.uk), 16th March. Many people who stammer find these more difficult than face-to-face interviews. See my section on Telephone or video interviews.

Normally it might be a reasonable adjustment to have a face-to-face interview instead of a phone/remote interview, or perhaps waive the person through an initial screening interview by phone. However due to public health advice on Coronavirus and ‘stay at home’ requirements, a face-to-face interview is much less likely to be reasonable at the moment, particularly as the interviewers themselves may well be working from home. Also waiving the person through is not feasible if it is the main interview.

Skype or Zoom?

Some – though not all – people who stammer may be OK with a Skype or Zoom interview (with any other reasonable adjustments they require), as being able to see the other person can help. Interviewers may prefer this visual format anyway.

For any remote interview, video or not, other adjustments will often be reasonable under the Equality Act. The most obvious is a longer time for the interview, perhaps more than for a face-to-face interview.

Also, even more than for a face-to-face interview (see Assessment of oral skills in recruitment), I’d say employers should bear in mind that a person’s speech in a remote interview is not a reliable guide to how they will communicate in the job; if they do not they may find if more difficult to justify their decisions under the Equality Act.

The BBC article above suggests that people practice ahead of an video online interview because it is a completely different experience from interviewing in person.

Written answers?

It may not be reasonable to insist that the particular person does a remote oral interview. It might be a reasonable adjustment to allow him to give written responses to questions instead of (or perhaps as well as) a remote oral interview. Even allowing a longer time for the remote oral interview and other adjustments to it may not put him on a level playing field with other candidates. For example, due to the stammer he may limit what he says so that he fails to show in-depth experiences and examples (see the Wakefield case at the ‘written responses’ link above).

Written responses might be done remotely, eg by email or perhaps an online chat facility, provided the person is given sufficient time to write a normal full response. Oral follow-up questions, eg by video link, might be considered.

In the job

The Coronavirus is changing how many jobs are done in ways that may be challenging for a person who stammers.

An obvious example is more phone calls rather than speaking face-to-face. My website suggests possible reasonable adjustments for phone calls, including steps which may make them easier, or perhaps re-allocating duties. You may find it easier if you’re now homeworking, so that you’re phoning on your own rather than in an open plan office.

There are also possible reasonable adjustments for video conferences and conference calls, which will often take the place of face-to-face meetings. A person who stammers may prefer one format over the other:

Example: A team is working from home. The boss proposes they have a team meeting via telephone conference call. This is changed to a video conference at the request of a member of the team who stammers. He prefers video conferences because if he pauses then other members of the team can see if it is because he is stammering, so they know not to interrupt. (He may also find it easier to speak if he can see the other people).

A further example on remote working:

Example: A lecturer has to produce new video materials so that students can learn remotely. It should be fine that the lecturer sometimes stammers in these.

In deciding whether it is justified under the Equality Act to take action against (perhaps ultimately dismiss) a person because the employer considers their stammer is creating difficulties with the new way of working, it should be relevant that the new way of working is hopefully only temporary rather than permanent.

The Equality Act employment provisions including the duty to make reasonable adjustments are not limited to ’employment’. For example they are likely to apply often in the gig economy: Employees, workers and beyond. However this is obviously not much help if these people do not have work to do.

Redundancy

The government meeting up to 80% of wages of those on ‘furlough leave’ will hopefully reduce redundancy, but some workers may face being made redundant. For what it’s worth, the Equality Act applies to selection of who is made redundant: Losing one’s job>Redundancy. It should also apply to who is or isn’t selected for ‘furlough leave’.

Services

Again communication by phone is now more common.

Example: A GP surgery or hospital clinic starts holding its appointments over the phone. Where this does not work for a person who stammers, it may well be a reasonable adjustment to offer an alternative, such as face-to-face with appropriate precautions, or online over a secure messaging system. Another option is a video call if the particular person would find that easier.

Because the reasonable adjustment duty for service providers and bodies exercising public functions is anticipatory, they should consider possible adjustments for different kinds of disability in advance of the particular disabled person presenting themself. However with the Coronavirus a certain time lag in sorting this out may be reasonable, because of the speed with which it has been necessary to introduce measures.

What if a service provider or public body argues that it is not a reasonable adjustment to offer an alternative to the telephone because the person who stammers can just get a friend or family member to phone for them? The European Convention on Human Rights can help in arguing against this: Human rights and provision of services.

Police enforcement

Police can enforce the lockdown under new regulations, eg asking people why they are outside.

It may well be a good idea to tell the police you have a stammer, for the reasons outlined on my Police page. As described there the police are generally covered by the Equality Act. They should not discriminate and should make reasonable adjustments.

In England the main regulations restricting movement are regulations 6 and 7 of SI 2020/350. Police powers include issuing fixed penalty notices. Link: Police given new powers and support to respond to Coronavirus (gov.uk), 26th March.

Courts

Courts are moving to much greater use of remote audio and video links for hearings, due to the Coronavirus. This should be done in a way which takes stammering and other disabilities into account. See Courts and Coronavirus.

Emergency volunteers

Anyone applying to join the NHS volunteer responders www.goodsamapp.org/NHS will doubtless be focussing on how they can help rather than Equality Act rights.

However legally the Equality Act should apply to the public authorities running the scheme. It is not clear which part of the Act it would fall within. For example if might be the provisions on public functions, or possibly the employment provisions.