2011 Guidance on definition of disability - Stammeringlaw

Download the full 2011 guidance on definition of disability (pdf, gov.uk) under the Equality Act 2010.

Table of page contents

Summary

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.
The Guidance is not an authoritative statement of law but should be taken into account by tribunals and courts, at least as regards how the Equality Act should be applied in practice. Below How far does the guidance have legal effect?
Avoidance strategies are included as adverse effects of the impairment. The Guidance includes a specific example of hidden effects of a stammer being taken into account: below Example of stammering on phone. That example also illustrates that a very ‘normal’ type of stammer can fall within the Equality Act; it does not have to be severe.
Other things that can be relevant towards an impairment (such as a stammer) having a substantial effect on normal day-to-day activities include taking longer to speak, the way one speaks, and environmental factors including eg tiredness. Different effects can be combined so that one looks at the cumulative effect.
The 2011 Guidance is better than previous versions of the guidance in not specifically excluding a minor stammer from being a disability.
It is likely to be helpful to take the 2011 Guidance into account if writing a disability impact statement for a tribunal case.
Guidance on what is a “particular” disability ( eg “speech impairment”, “fluency impairment”?) may be relevant as regards indirect discrimination, for example. However the position is unclear as regards stammering.
The courts have said that in employment cases some of the Guidance is too limited and can be overridden by EU law (this can apply even after Brexit). The courts have also warned against a ‘sliding scale’ approach to deciding what is “substantial”: despite any contrary impression from the Guidance, if the effect is not “minor or trivial” then it is “substantial”. Below Criticism of 2011 guidance by EAT.
The 2011 Guidance does not apply in Northern Ireland: see separate page Definition of disability: Northern Ireland.

How far does the guidance have legal effect?

A common misconception is that whatever the statutory Guidance and Codes say is authoritative, that what they say must be right. This is not true. Some statements in the Guidance and Codes turn out to be incorrect, in the light of later decisions by the courts. Despite being called “statutory” Guidance, this document is not an authoritative statement of the law.

However, tribunals and courts are required to “take account of” the Guidance where relevant (EqA Sch 1 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 courts must take the statutory Guidance into account as regards how the Equality Act should be applied in practice. See further Legal effect of statutory guidance and codes.

Also the Employment Appeal Tribunal (EAT) has held that some aspects of the 2011 guidance may be misleading: see below Criticism of 2011 guidance by EAT.

Avoidance strategies

I discuss these more generally on Hiding the stammer.

Avoidance: Example of stammering on phone (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.”

2011 guidance, para D17. It says “these” cases because there are two non-stammering examples before this example.

This example is based on an example 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 hidden by these strategies – can be a substantial effect on normal day-to-day activities within the Equality Act.

This para D17 example is also helpful in setting out that a very ‘normal’ type of stammer can fall within the definition of “disability” in the Equality Act. The stammer does not have to be severe.

The wording in the para D17 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 Guidance, which says: “The requirement that an adverse effect on normal day-to-day 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 might be argued that stammering does in the nature of things go beyond normal differences between people. See also below Minor stammer.

Avoidance: “Substantial social embarassment” (para B9)

Account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment, or avoids doing things because of a loss of energy and motivation. It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person. In determining a question as to whether a person meets the definition of disability it is important to consider the things that a person cannot do, or can only do with difficulty.
2011 Guidance, para B9

Like para D17, para B9 is helpful in making clear that avoidance can be an adverse effect. “Substantial social embarrassment” is a fair description of the main reason why people who stammer commonly try to avoid stammering, through use of word substitution or otherwise. Fatigue could also be relevant. Also para B9 says those reasons for avoidance are only examples – so at least similar reasons should also be covered.

However there is some lack of clarity on how para B9 fits with para B7: see Disability: Failure to modify behaviour.

Avoidance: Difficulity with social interaction (Appendix)

An example listed in the Appendix as something it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities 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”.
2011 Guidance, Appendix, page 55

This will be relevant to some people who stammer.

Avoidance: Facial scarring (para B24)

Another example on avoidance, at para B24, may also be relevant to stammering by analogy. This 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:

A lady has significant scarring to her face as a result of a bonfire accident. The woman uses skin camouflage to cover the scars as she is very self conscious about her appearance. She avoids large crowds and bright lights including public transport and supermarkets and she does not socialise with people outside her family in case they notice the mark and ask her questions about it.

This amounts to a substantial adverse effect. However, the Act does not require her to show that her disfigurement has this effect because it provides for a severe disfigurement to be treated as having a substantial adverse effect on the person’s ability to carry out normal day-to-day activities.
2011 guidance, para B24

The last sentence is not relevant to stammering, but is based on EqA Sch 1 para 3 which says that a severe disfigurement is treated as having a substantial effect even if it doesn’t actually. What may be relevant to stammering by analogy is that the Guidance says there is actually a substantial adverse effect on the facts of this example.

Taking a longer time to speak (para B2)

Paragraph B2 says that the time taken to carry out a normal day-to-day activity compared with a person who does not have the impairment is relevant to whether there is a substantial effect:

The time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time it might take a person who did not have the impairment to complete an activity.
2011 Guidance, para B2

See further Substantial effect>Time taken.

The way one speaks (para B3)

The way in which the activity is carried out is also relevant in deciding whether the effect of the impairment is substantial. Someone who stammers will often speak in a different way from someone without a stammer:

Another factor to be considered when assessing whether the effect of an impairment is substantial is the way in which a person with that impairment carries out a normal day-to-day activity. The comparison should be with the way that the person might be expected to carry out the activity compared with someone who does not have the impairment.
2011 Guidance, para B3

Environmental factors (para B11)

Environmental factors dealt with in para B11 can be relevant for stammering. See:

Cumulative effects (para B4-B6)

Para B4-B6 on cumulative effects on numerous day-to-day activities, or of different impairments, can also often be relevant for stammering. Para B6 includes an example on speech. See Substantial effect>Cumulative effects.

Minor stammer (Appendix)

An example listed in the Appendix as something it would not be reasonable to regard as having a substantial adverse effect on normal day-to-day activities is:

“Inability to articulate certain sounds due to a lisp.”
2011 Guidance, Appendix, page 56. This seems to imply that difficulty saying the letter “r” is also not a disability, in the news through the US Youth Poet Laureate Amanda Gorman (cnn.com) who read at Joe Biden‘s inauguration in 2021.

Unlike previous versions of the guidance, the 2011 Guidance does not include a statement on fluency/stammering that might read as saying a “minor” stammer is not a disability. The 1996 Guidance said that a “minor” stammer was not within the DDA. The 2006 guidance said that inability to articulate fluently due to a lisp “or other minor speech impediment” was not within the DDA. That 2006 statement was 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 said was not covered?

The 2011 Guidance is much better, just mentioning a lisp. There is no mention in that example of fluency, so the statement does not apply to stammering. (Note: It seems from the example in para B6 – see Substantial effect>Cumulative effects – that even a lisp can be a disability when combined with another mild disability.)

This does not necessarily mean that any stammer is a disability. But one could make the argument that in practice 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 further “Substantial” effect>Going beyond normal differences between people: outline.

Treatment/therapy (para B12-B17)

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. See Discounting speech techniques etc.

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.

Public speaking (Appendix)

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 substantial effect. For consideration of this in relation to stammering, see Normal day-to-day activities: At Work.

Disability impact statements

In writing a disability impact statement for a tribunal case, it is likely to be helpful to include particularly anything given as an example in the 2011 Guidance so far as it applies to you, while of course not limiting the impact statement to that. For example how far do you fall within the Example of stammering on the phone?

Also in writing the statement, one could bear in mind (among other things) factors which the Guidance particularly says are relevant in deciding whether there is a “substantial effect” – so far as those factors apply in normal day-to-day activities – such as (outlined above) time taken to speak, the way you speak, cumulative effects, environmental factors, and avoidance strategies. On avoidance strategies see too Hiding the stammer. Also consider discounting the effect of speech techniques etc.

What is a “particular” disability? (Section F)

Where is it relevant?

Firstly, defining the “particular” disability may only rarely be important in practice. For example in deciding whether those with a particular disability are at a disadvantage, not everyone – not even most people – with that particular disability need to be disadvantaged (Reasonable adjustments by service providers>Particular kind of disability, Indirect discrimination>’Same’ disability). It does not seem to have been a major issue in cases (below) so far.

However legally the issue sometimes arises what counts as a particular disability, or whether people share the same disability (s.6(3) EqA). The 2011 guidance addresses this in Section F. Where can this be relevant? (But note that in some respects the EU Court’s 2021 decision in VL v Szpital Klinicnzy takes a different approach. British courts are not bound by this decision but may have regard to it.)

It matters for indirect discrimination whether a practice etc puts people who share a certain disability at a particular disadvantage. See Indirect discrimination>Same disability.
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, rather than the effect on the individual claimant. See Objective justification: group or individual effect?
The issue can also arise where an employer argues it is an occupational requirement for a job candidate to have a particular disability.
Courts considering direct discrimination have also looked at whether a hypothetical comparator without “that particular disability” would have been treated in the same way: eg Owen v Amec, even though the Equality Act 2010 does not use this wording for direct discrimination. The Disability Discrimination Act 1995 did use this wording though.

A similar question arises as regards the reasonable adjustment duty on service providers, since here there is a ‘group’ approach to the reasonable adjustment duty rather than looking at what is reasonable to address the disadvantage to the 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 Reasonable adjustments by service providers>Particular kind of disability). Legally the same EqA wording does not necessary apply as in the examples above. However in practice the courts may well see it as the same issue.

“Particular” disability in the Guidance and Codes

Section F of the 2011 guidance draws 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 also addressed very briefly in the Employment Code at para 4.16, and Services Code at para 5.17, when they say that people with a particular disability would be, for example, people with an “equivalent visual impairment”.

In an example of an FE college banning hypodermic needles on campus (due to illegal drug use), para 5.16 of the EHRC’s Technical Guidance on Further and Higher Education sees the relevant pool as “all diabetic students (and any other students with disabilities that required them to use hypodermic needles in the treatment of their condition)”. I’m somewhat doubtful whether this is right, given that it is not the injections that are likely to be a substantial adverse effect of the diabetes.

“Particular” disability in cases

There have been some cases on Reasonable adjustments by service providers>Particular kind of disability where the relevant disability seems to have been undisputed:

In Roads v Central Trains and Paulley v FirstGroup the particular disability was a physical condition requiring the person to use a wheelchair. By the time Paulley reached the Supreme Court, it was common ground that the correct comparator was a non-wheelchair user rather than (as the bus company argued before the County Court) non-disabled people with particular difficulties such as mothers with buggies.
In MM & DM v Secretary of State for Work and Pensions those with the particular disability were taken as “mental health patients (MHPs)”, defined as people with impaired mental, cognitive, or intellectual difficulties (sic).
In Finnigan v Northumbria Police the relevant class was seen as “deaf” persons.

“Particular” disability as regards stammering

In the absence of disputed court decisions, I think the position is unclear. For example might “speech impairment” or “fluency impairment” be seen as the relevant classification, rather than “stammer”? Possibly not, because a stammer has a particular type of effect on speech? Or it may be wider, such as all those with a speech/language impairment. Or it might perhaps be defined by reference to the relevant disadvantage, as the EHRC possibly suggests in the hypodermic needle example above.

This will be a matter for the courts to decide. As ever the courts may take a different view from what the Guidance says: see Legal effect of statutory guidance and codes.

Whether one takes “speech impairment” or something else, presumably it will be limited to those who have a ‘disability’ as defined in the Equality Act.

Criticism of 2011 guidance by EAT

EU law can overrule the 2011 guidance

Under EU law “normal day-to-day activities” are very wide in employment cases: see Normal day-to-day activities. They are likely to cover nearly all work-related activities. In a 2016 case the EAT held that this EU position overrode examples in the 2011 guidance which seemed to indicate that the claimant’s heavy lifting at work was not a normal day-to-day activity. Even after Brexit this position is likely to continue for the time being: see Brexit: Effect of EU law when interpreting Equality Act from 2021.

Banaszczyk v Booker, Employment Appeal Tribunal, 2016
The claimant’s disability affected the claimant’s ability to lift weights at work up to 25kg. The Employment Tribunal judge had considered the Appendix to the 2011 guidance which sets out a illustrative list of factors which it would or would not be reasonable to see as having a substantial adverse effect on normal day-to-day activities. On one side of the line (reasonable to see as having a substantial effect) 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.” Considering these examples, 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”.

No ‘spectrum’ between examples of what is and isn’t a disability

The Employment Appeal Tribunal (EAT) has said that the way in which 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 the Equality Act 2010 as “more than minor or trivial” (s.212(1) EqA). 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, 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 against 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.

Northern Ireland

The 2011 Guidance does not apply in Northern Ireland: see Definition of disability: Northern Ireland.

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