Download the 2011 guidance (pdf, on gov.uk) on the meaning of ‘disability’ in Equality Act 2010.
Summary of key points, compared with old version
These are some key points comparing the 2011 guidance with the 2006 version, and linking to more detail below.
- The example of stammering on the telephone is still in the guidance, and indeed is even more helpful than before: Example of stammering on telephone.
- The stammering example that was at para B8 of the 2006 guidance has been deleted. There were problems with this example and it needed to be either deleted or amended: Paragraph B8 and avoidance strategies.
- The 2011 guidance finally gets away from a statement about fluency/stammering that might seen as saying a ‘minor’ stammer is not a disability: Minor stammer.
- As an example of what it would be reasonable to regard as having a substantial adverse effect, the guidance no longer says “taking longer than someone who does not have an impairment to say things.” However, time taken to speak is clearly still relevant: Taking a longer time.
The full name of this document is the Guidance on matters to be taken into account in determining questions relating to the definition of disability. It is important in giving tribunals more detailed guidance on how the very general wording of the legislation should be applied.
How far does the guidance have legal effect?
The guidance is not an authoritative statement of the law. It is a common misconception that whatever the statutory Guidance and Codes say is authoritative, that they say must be right. This is not true. Some statements in them turn out to be incorrect, in the light of later decisions by the courts.
However, tribunals are required to take the Guidance into account where relevant (EqA Sch1 para 12). The House of Lords declined to take previous guidance into account when it comes to statutory interpretation, though another case has thrown that into some doubt. In any event it seems the statutory Guidance must be taken into account by the courts as regards how the EqA should be applied in practice. See further Legal effect of statutory guidance and codes.
Also the Employment Appeal Tribunal (EAT) has that some aspects of this guidance may be misleading: see below Criticism by EAT.
Example of stammering on telephone – para D17
Text of the example
2011 guidance, para D17
“…A man has had a stammer since childhood. He does not stammer all the time, but his stammer, particularly in telephone calls, goes beyond the occasional lapses in fluency found in the speech of people who do not have the impairment. However, this effect can often be hidden by his avoidance strategies. He tries to avoid making or taking telephone calls where he believes he will stammer, or he does not speak as much during the calls. He sometimes tries to avoid stammering by substituting words, or by inserting extra words or phrases.
“In these cases there are substantial adverse effects on the person’s ability to carry out normal day-to-day communication activities.”
That 2011 version compares with 2006 example:
2006 guidance para D25(i)
“A man has had a stammer since childhood. He does not stammer all the time, but his stammer can appear, particularly in telephone calls, to go beyond the occasional lapses in fluency found in the speech of people who do not have the impairment. However, this effect can often be hidden by his coping strategy. He may try to avoid telephone calls where he believes he will stammer, or he may not speak as much during telephone calls. He may sometimes try to avoid stammering by substituting words, or by inserting extra words or phrases.
“…. it would be reasonable to regard these effects as substantial adverse effects.”
Comments on telephone example
As can be seen, this example in the 2011 guidance is based on one in the previous 2006 guidance.
The example is excellent in setting out how people who stammer can try to hide the effects of their stammer. It is helpful in indicating that avoidance strategies (eg word substitution, avoiding situations) – or the effects they hide – can potentially be a substantial effect on normal day-to-day activities within the Equality Act. (Another example on avoidance, at paragraph B24, is also relevant by analogy. That talks of there being a substantial effect where a woman with significant facial scarring avoids numerous social situations, which some people who stammer also do.)
Under Equality Act 2010, as under the previous DDA, effects of the impairment need only be substantial in the sense of being more than ‘minor or trivial’. This para D17 example is helpful in setting out that a very ‘normal’ type of stammer falls within the Equality Act – the stammer does not have to be severe.
The wording in the example that “his stammer…goes beyond the occasional lapses in fluency found in the speech of people who do not have the impairment” ties in with paragraph B1 of the 2011 guidance. Paragraph B1 says: “The requirement that an adverse effect on normal day-today activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people…”. It can be argued that stammering does in the nature of things go beyond normal differences between people. See also below Minor stammer.
The 2011 wording goes beyond the 2006 version in that the 2011 guidance says there are substantial adverse effects in the example given, rather than just it would be reasonable to regard there as being substantial effects.
Another improvement is that the 2011 version makes clear that it is talking of ‘avoidance strategies’, rather than using the term ‘coping strategy’.
Paragraph B8 and avoidance strategies
The previous example about stammering at para B8 of the 2006 guidance has gone. This is welcome in the sense that there were significant problems with the example – it needed to be either deleted or amended. The example was of a woman who stammers, who avoided using the telephone and giving verbal instructions at work, limited social contact outside her immediate family, and avoided challenging situations with service providers. The (2006) guidance said the tribunal should consider how far it was reasonable to expect her to place such restrictions on her life. While the example was useful in making clear that the extent of her stammer was hidden by her avoidance, its statement of the legal position was incorrect, and indeed seemed to be inconsistent with what the text of the 2006 guidance said about avoidance strategies.
This section of the new 2011 guidance – from para B7 onwards – is still not ideal. In particular, it is unclear why in the new para B9 example inability of someone with a mental health condition to go to on the tube in the rush hour would not clearly be a substantial adverse effect on ability to carry out a normal day-to-day activity. However, there are numerous arguments one could make (only one of which is the helpful para D17 example above) why the effect of a stammer should not be seen as reduced by the possibility of using avoidance strategies in normal day-to-day situations. More: Hiding the stammer.
It is very possible that paras B7 to B9 of the 2011 guidance still understate the extent to which avoidance strategies are consistent with and indeed create a disability as defined in Equality Act 2010. However, with the deletion of the stammering example here, it is welcome that those issues with the guidance no longer appear to be directed at stammering.
The 1996 guidance said that a ‘minor’ stammer is not within the DDA. The 2006 guidance says that inability to articulate fluently due to a lisp ‘or other minor speech impediment’ is not to be wthin the DDA. This is rather confusing – a lisp does not affect ‘fluency’ and the best known speech disorder which does is stammering. So could a ‘minor’ stammer be an example of a ‘minor’ speech impediment which the 2006 guidance says is not covered?
The 2011 guidance is much better. There is no mention at this point of fluency, so the statement clearly does not apply to stammering. The 2011 guidance simply says that ‘Inability to articulate certain sounds due to a lisp’ would not be a disability (in Appendix of 2011 guidance).
This does not necessarily mean that any stammer is a disability. But one could make the argument that any stammer will go beyond the normal differences which exist between people, as stated in para B1 and the Example at paragraph D17 above. See generally (though based on the 2006 guidance): Is every stammer covered?
Taking a longer time
The 2006 guidance at para D25(i) said that it would be reasonable to regard as having a substantial adverse effect “taking longer than someone who does not have an impairment to say things.” It is a pity that the 2011 guidance does not include this.
However, paragraph B2 of the 2011 guidance says that the time taken to carry out a normal day-to-day activity compared with a person without the impairment is relevant. Para B3 deals with the ‘way in which an activity is carried out’ which again will typically be different for people who stammer. Para B4/B5 on cumulation of effects on numerous day-to-day activities will also often be relevant for stammering, as well environmental factors dealt with in para B11. The Example at paragraph D17 is very helpful in indicating that a very ‘normal’ level of stammering is within the Equality Act,
An example which will be relevant to some people who stammer is: “Persistently wanting to avoid people or significant difficulty taking part in normal social interaction or forming social relationships, for example because of a mental health condition or disorder”. This is listed in the Appendix as something it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities.
Measures being taken to treat or correct an impairment are disregarded in deciding what effect it has. One looks at whether the impairment would have a substantial adverse effect without the measures. It is interesting that to illustrate this, the 2011 guidance uses an example of counselling being given to a person with depression (para B14). This is closer to speech and language therapy than the more ‘medical’ examples, such as drugs or prostheses, commonly used to illustrate the rule. For more on the rule: Therapy, and using speech techniques or devices.
Like the 2006 guidance, the Appendix of the 2011 guidance says that inability to speak in front of an audience simply as a result of nervousness is not a disability. For consideration of this in relation to stammering, see Normal day-to-day activities: At Work.
It is sometimes relevant what counts as a particular disability, or whether people share the same disability (s.6(3) EqA). The 2011 guidance addresses this in a new Section F. Examples of where it can be relevant:
- it is relevant for indirect discrimination whether a practice etc puts people who share a certain disability at a particular disadvantage.
- in assessing whether indirect discrimination is proportional, so as to be objectively justified, it seems one looks at the discriminatory effect on people with that disability, ie the effect on the group, rather than the effect on the individual claimant. See Objective justification: group or individual effect?
- The issue can also arise where an employer says it is an occupational requirement for a job candidate to have a particular disability.
A similar question arises as regards the reasonable adjustment duty on service providers where there is a ‘group’ approach to the reasonable adjustment duty, rather than looking at what is reasonable do address disadvantage to an individual. Cases have said it is sufficient that people with one or more kinds of disability – as opposed to all disabled people – are put at a substantial disadvantage (see Particular kind of disability). Legally the same EqA wording does not apply as in the examples above, but in practice the courts may well see it as the same distinction.
The issue may only rarely be important in practice. It is noteworthy that it does not seem to have been a major issue in cases on reasonable adjustments by service providers.
So far as the issue is relevant, Section F of the 2011 guidance seems to draw the boundary quite widely. In particular, it sees ‘mobility impairment’ as a particular disability, even though that would cover many types of medical condition. The issue is addressed very briefly in the Employment Code para 4.16, and Services Code para 5.17 when they say that people with a particular disability would be, for example, people with an “equivalent visual impairment”.
It is unclear whether on this basis ‘speech impairment’ or ‘fluency impairment’ might be seen as the relevant classification, rather than ‘stammer’. Perhaps not, because a stammer has a particular type of effect on speech. Or “particular disability” might be something inbetween. Or it may be wider, such as all those with a speech/language impairment. Or it may be something else!
In any event, this will be a matter for the courts to decide – and as ever the courtis may take a different view from what the guidance says (see Legal effect of statutory guidance and codes).
Presumably – whether one takes ‘speech impairment’ or something else – it will be limited to those who have a ‘disability’ as defined in the Equality Act.
Criticism by EAT
EU law can overrule the offical guidance
In Banaszczyk v Booker, a case in 2016 about a disability which affected the claimant’s ability to lift weights up to 25kg at work, the Employment Tribunal judge had cited from the Appendix to the 2011 guidance which sets out an illustrative and non-exhaustive list of factors which it would be reasonable, or not reasonable, to see as having a substantial adverse effect on normal day-to-day activities. On one side of the line he cited ‘Difficulty picking up and carrying objects of moderate weight, such as a bag of shopping or a small piece of luggage, with one hand’. On the other he cited ‘Inability to move heavy objects without assistance or a mechanical aid, such as moving a large suitcase or heavy piece of furniture without a trolley.’ The tribunal judge had held the claimant did not have a disability.
However, the EAT overruled this. It said in the employment field it is now established law that the definition of ‘disability’ must be applied in a way which gives effect to EU law. In the light of EU case law, the lifting in this case must be seen as a ‘normal day-to-day’ activity.
Under EU law ‘normal day-to-day activities is very wide indeed in an employment case: see Normal day-to-day activities. The 2011 guidance is more likely to be followed in non-employment claims where EU law may not apply.
No ‘spectrum’ between examples of what is and isn’t a disability
The Employment Appeal Tribunal (EAT) has said the way that examples are contrasted in this 2011 guidance (and the 2006 guidance) can be misleading. It said there is not a spectrum between what is clearly substantial and what is clearly trivial. ‘Substantial’ is defined in Equality Act 2010 as more than minor or trivial. So the question is whether the adverse effect is minor or trivial. If it isn’t, it must be ‘substantial’.
Aderemi v London and South Eastern Railway, EAT, December 2012
“Unfortunately, as it seems to us … the guidance both in the 2006 and for that matter, the 2011 form, attempts to give assistance to Tribunals and others by contrasting those matters which are clearly trivial and insubstantial on the one hand with those which are clearly substantial on the other. That might although wrongly, be taken to indicate that there is something of a sliding scale between the two, wherein the process of assessment may operate. However, it may only operate to ask whether a matter can be regarded as trivial or insubstantial: if not, it will be substantial if it is of effect upon normal day-to-day activities. As a matter of first principle when considering the statute, this requires the focus of the Tribunal to be not upon that which a Claimant can do but that upon which he cannot do. It is what he cannot do that requires to be assessed, to see whether it is truly trivial and insubstantial or whether it is not.”
Given the EAT’s warning against a ‘sliding scale approach’, a tribunal should be wary of contrasting different examples, and it may not be so important that a claimant is some distance from an example of what is ‘substantial’.
The Equality Act 2010 does require a tribunal to take the guidance into account where relevant, and the guidance is still likely to be very important. However, tribunals should bear in mind the EAT’s warning that it may mislead one into a sliding scale approach. The Aderemi case suggests that the tribunal should look at whether the effect on the claimant’s ability to do normal day to day activities is more than minor or trivial – focussing on what the claimant cannot do and using the comparative approach in Paterson.