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Disability: Hiding the stammer

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Last updated 6th May 2013 (part update 23rd October 2020).

The real extent of a person’s stammer is often not apparent. The person may avoid difficult situations for example, speak less, or subsitute words he cannot say, so as to sound fairly fluent. Hidden effects can be relevant towards the stammer being a disabilty under the Equality Act.

Summary

Stammering iceberg – see below.
©iStockphoto.com/jgroup

How people hide

Many people who stammer will sometimes avoid situations, substitute words etc, to try to avoid stammering openly. Stammering is often compared to an iceberg, with much more below the surface than is visible above. See below How people hide.

Types of effect

The main requirement a stammer has to meet for it to be a disability within the Equality Act is that it has a substantial adverse effect on ability to carry out normal day-to-day activities.

Often a person’s visible stammer has a substantial effect in any event. However additional hidden effects of stammering can bolster the argument that the stammer is a disability. There are two different ways of analysing the hidden effects, both of which seem valid. See below Types of ‘substantial ‘ effect.

Two alternative ways of describing the hidden effect of avoiding phone calls:

Where someone avoids using the phone due to their stammer, an effect of the stammer is that the person cannot use the phone, or their use of it is restricted.
See below: Effect’ as the avoidance itself.

If the person did use the phone, they would stammer a lot. How their speech would be if they did make the phone call is an effect of the stammer on the person’s ability to speak on the phone.
See below: Effect as how the stammer would be if no avoidance.

As regards word substitution and use of ‘fillers’, those two legal arguments for including hidden effects are joined by another, namely EqA Schedule 1 para 5. This provision requires the courts to discount measures taken to correct a disability. See below Word substitution and “fillers”.

Common sense

If avoidance is not given due weight in considering whether a person has a ‘disability’, the person may be more likely to have a ‘disability’ after speech therapy than before. This would be a very odd conclusion. After therapy he may be speaking more freely and to a greater extent, hopefully living a fuller life, but with a more obvious stammer. See below Common sense.

Knowledge of employer etc

The employer etc often has a defence if it did now know and could not reasonably have known of the stammer or its effects. Below Knowledge of stammer – possible defence by employer etc.

2011 Guidance

“…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.”

Para D17 of 2011 guidance. It says ‘these’ cases because there are two non-stammering examples before this example.

This example in para D17 of the official guidance clearly indicates that tribunals should take into account hidden elements of a stammer. The guidance is not binding, but tribunals must take the guidance into account where relevant. See below for more on the 2011 guidance as regards avoidance and concealing a disability.

Cases

S v Translink, Industrial Tribunal Northern Ireland, 2007
The industrial tribunal held that the claimant’s stammer was a ‘disability’ within the Disability Discrimination Act 1995. Among other things, the claimant would employ avoidance strategies by asking other people to do things for him.

 Wakefield v HM Land Registry (below), 2007, Employment Tribunal
The tribunal accepted that a stammer with covert symptoms was a ‘disability’. The fact that the claimant did not fall silent or stammer audibly was no proof at all that he had conveyed the message he would like to convey. Also as regards the duty to make reasonble adjustments, the tribunal accepted that the claimant was at a substantial disadvantage in a job interview. Although the claimant might “get the answers out” without too much overt stammering, the meaning of the anwers was distorted and the impression of superficiality created.

How people hide

Many people who stammer use avoidance and concealment strategies to try to avoid stammering openly, at least some of the time.

Often these strategies involve the person not saying what he or she actually wants to say, and are linked with fear of how the listener will react if he stammers openly.

Part of speech and language therapy, if the person is having this, will generally be to encourage him to move away from using these strategies, so as to have greater freedom of expression. Similarly self-help such as stammering groups and events commonly encourage a people to accept their stammer, and to stammer openly.

Examples of avoidance and concealment strategies:

  • Avoiding situations in which the person finds it difficult to speak, for example avoiding phone calls, avoiding various social situations, avoiding getting into a conversation
  • Changing words and phrases – scanning ahead for words on which he feels he will stammer and changing words or phrases to something he can say. A person may sound like they are ‘beating round the bush’, vague or inexpert. A person may order a different drink at the bar because it’s something they can say. Below Word substitution and “fillers”
  • Staying quiet – eg not saying something he would like to say in a conversation
  • Saying less – eg keeping a comment short, or answering a question briefly (including a job interview question), not adding something that he would really like to
  • Inserting ‘fillers’ – meaningless words or phrases such as “actually”, “like”, “I mean” (perhaps repeatedly), to help avoid stammering. Below Word substitution and “fillers”
  • Making excuses – eg ‘I don’t know’, or ‘I can’t remember’ where in fact they do know but can’t say it.

There are some concrete examples in the cases below, and in Word substitution and “fillers”.

‘Covert stammering’

Many people who use avoidance and concealment still stammer overtly to a significant extent.

In some people, however, avoidance and concealment strategies give rise to a ‘covert stammer’, also known as ‘interiorised stammering’. The person speaks fluently (or their dysfluency is relatively trivial) but only because they are using the strategies to hide their stammer. Almost everyone may relate to them as fluent, not knowing about the stammer.

For more see BSA’s information on covert stammering: scroll down to Overt & covert stammering on About stammering>Variations & complications (stamma.org).

The stammering ‘iceberg’



Stammering is often compared with an iceberg. The effects of the stammer may be mostly invisible, beneath the surface.
©iStockphoto.com/jgroup

Whether a person’s stammer is overt or covert, there is often a great deal going on inside them, invisible to the listener. Stammering is compared with an icebeg. The stammering you see may be only the small part above the waterline. See www.mnsu.edu/comdis/isad6/papers/hicks6.html and the stamma.org link above. Most of the stammer may be hidden underwater – fear, shame, panic, embarrassment etc, leading to the avoidance strategies described above. For example the person may be constantly scanning ahead for difficult words, planning how to change them. This can be really exhausting. Strategies such as avoiding conversations and social situations are likely to impact on the person’s ability to build relationships with people, and on their quality of life.

So even if a stammer may sound mild or may be completely invisible, there can be a lot going on beneath the surface. The stammer may actually be having a large effect.

Some people have much more ‘below the waterline’ than others. Often an aim of speech and language therapy or self-help is to reduce the invisible effects of a stammer, as well as working on the speech itself. Reducing invisible effects may actually mean that the person stammers more, but is happier with this. The person may now be saying more of what they want to say, with a stammer.

Types of ‘substantial’ effect

For a stammer to be a ‘disability’ within the Equality Act, the main requirement is that it has a substantial adverse effect on the person’s ability to carry out normal day-to-day activities (see Substantial effect). There are three types of effect consider:

  1. Firstly, even without taking hidden effects into account, you may well have sufficient overt stammering to meet the test anyway. See Substantial effect. Hidden effects under 2 and 3 below (and disregarding use of speech techniques etc, dealt with on a separate page) are only needed if the stammer as it appears to others is not sufficient to meet the definition of ‘disability’. However if the employer etc is disputing that it is a disability, you will probably want to reinforce the argument by pointing out the hidden effects too. Turning to hidden effects through avoidance/concealment:
  2. Secondly, one can see the effect as the avoidance in itself. For example, the fact that the person tends not to make phone calls could be seen as an effect of the stammer. See below ‘Effect’ as the avoidance itself.
  3. Thirdly, there is case law to indicating that how the stammer would be if the person did not avoid should be seen as an effect. A person may not actually be stammering much, but how would their speech be if they were making the phone calls they wanted, and saying what they really wanted? That would probably result in them stammering much more. It is the ability to do normal day-to-day activities which matters, even though a person avoids activities they find difficult. See below Effect as how the stammer would be if no avoidance.

Also, as I discuss below, the 2011 Guidance is helpful to the argument that such avoidance/concealment strategies can be taken into account.

‘Effect’ as the avoidance itself

The first approach is to say that the avoidance/concealment is itself an effect of the stammer. Provided this effect (with any other effect on normal day-to-day activities), is ‘substantial’, the stammer should be a disability within the Equality Act.

The argument would be, for example:

Where someone avoids using the phone due to the stammer, an effect of the stammer is that the person cannot use the phone, or their use of it is restricted.

If a person says less than they want to because of the stammer, that is an effect of the stammer, restricting their ability to talk

The cases on stammering outlined below seem to have taken this approach, ie that the avoidance itself is an effect of the stammer. Para B24 of the 2011 guidance also takes this approach:

B24 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…

Para B24 of 2011 guidance. The example goes on to explain that, in any event, a substantial adverse effect is not required to bring a severe disfigurement within the Equality Act.

Does not matter whether avoidance is a ‘part’ of the stammer

Many speech and language therapists (and indeed researchers) would probably say that a stammer is not just dysfluency but a set of symptoms, which can include avoidance/concealment. On this basis, one can argue that the stammer, through its symptom ‘avoidance’, restricts a person’s ability to carry out conversations etc.

But it seems that it does not matter whether the avoidance is a symptom of the stammer or not. In the para B24 example above (the woman with facial scarring who avoids socialising etc due to self-consciousness), the avoidance is not a symptom of the scarring, but the 2011 Guidance says it is a substantial effect. Also, the guidance specifically mentions avoidance by reason of substantial social embarrassment:

B9 Account should also be taken of where a person avoids doing things which, for example, cause … social embarrassment…
Para B9 of 2011 guidance. For full the paragraph, see below Extracts from 2011 guidance.

Worth mentioning too:

“An illustrative and non-exhaustive list of factors which, if they are experienced by a person, it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities……..

– 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…..”

Appendix of 2011 guidance.

Effect as how the stammer would be if no avoidance

This argument sounds a bit obscure but is actually very simple. The definition of ‘disability’ looks at whether there is a substantial adverse effect on one’s ability to carry out normal day-to-day activities. Even though you avoid speaking in a particular situation, your stammer can still affect your ability to speak in it.

A person finds their stammer particularly difficult on the telephone, and so tends to avoid using the phone. If the person did use the phone, they would stammer quite a lot. How their speech would be if they made the phone call is part of the stammer’s effect on the person’s ability to speak on the phone.

A person tends not to say something in a conversation if they feel they will stammer. This can mean the person actually sounds pretty fluent. However, the person is staying quiet precisely because of the difficulty they would have if they did speak. The difficulty the person would have if they did speak is part of the stammer’s effect on the person’s ability to carry out normal day-to-day activities.

This argument has strong backing from the Employment Appeal Tribunal:

Goodwin v Patent Office, Employment Appeal Tribunal, 1999
“In order to constitute an adverse effect it is not the doing of the acts which is the focus of attention but rather the ability to do (or not to do) the acts [my emphasis]. Experience shows that disabled people often adjust their lives and circumstances to enable them to cope for themselves. Thus, a person whose capacity to communicate through normal speech was obviously impaired might well choose, more or less voluntarily, to live on their own. If one asked such a person whether they managed to carry on their daily lives without undue problems, the answer might well be “Yes;” yet their ability to lead a “normal” life had obviously been impaired. Such a person would be unable to communicate through speech and the ability to communicate through speech is obviously a capacity which is needed for carrying out normal day-to-day activities, whether at work or home. If asked whether they could use the telephone, or ask for directions or which bus to take, the answer would be “No”. Those might be regarded as day-to-day activities contemplated by the legislation and that person’s ability to carry them out would clearly be regarded as adversely affected.”

In summary, there is a strong argument that the stammer is a ‘disability’ within the Equality Act if it would have a substantial (more than minor or trivial) effect on speech in normal day-to-day activities if one were not avoiding things due to the stammer. Also, as discussed above (‘Effect’ as the avoidance itself), there is a strong argument that the avoidance – eg not making the phone call, not saying what you want in a conversation – is itself an effect of the stammer, which may well be a substantial effect on normal day-to-day activities. These two arguments will usually overlap – they are two different ways of looking at the same set of facts, eg a person not picking up the phone because of how much they would stammer on it.

Common sense

There is a strong policy argument that someone using concealment/avoidance strategies should be treated as having a disability. If tribunals focus on overt effects of stammering, this could have the very odd result that a person is more likely to be ‘disabled’ after speech therapy or self-help support than before!

This is because current approaches to speech therapy and self-help tend to encourage a person not to conceal stammering. Speech and language therapists generally encourage their clients to stammer more openly and to go into situations they may have been avoiding till now. More generally, the goals of modern therapy are to enable the person who stammers to communicate freely what they want to say and to reduce sensitivity and negative feelings/reactions to stammering. Self-help groups and events generally take a similar approach.

The law should not be at odds with this. It cannot be right that a person is more likely to be seen as disabled after therapy when he is hopefully expressing himself more freely and living a fuller life, albeit with a stammer.

Of course it is also appropriate that a person after therapy who may be stammering more overtly can still be disabled under the Equality Act. If he is speaking with a stammer, he may suffer discrimination which should fall within the legislation.

Word substitution and “fillers”

Most of this page has focused on avoiding particular situations where the person feels they will stammer, for example phone calls, social situations, failing to speak up in a conversation, or keeping a contribution short when they would like to say more.

However, a person who stammers will also often avoid words and phrases on which he feels he will stammer, scanning ahead for words on which he feels he will stammer and changing words or phrases to something he can say. So the person is not really saying what they want.

  • The word substitution may not be apparent to a listener, although the person’s choice of words may sound odd and the person may not be communicating what they really want to say, or
  • it may be evident that the person actually started saying one thing but switched to something else.

Also people who stammer often insert “fillers”, meaningless words or phrases such as “actually”, or “I mean”, to fill the pause when they can’t say the next word, and perhaps to try to ‘get a run’ at a difficult word.

Use of word substitution and “fillers” means the person is not saying what they really want to and may come over poorly to the listener. For example:

  • What they say may sound odd, vague, inexpert, slow-thinking, beating round bush, not concise – because they are picking a different word, or choosing a longer phrase to try and describe the word they can’t say. “Fillers” such as “eh” or “well”, perhaps repeated, may exacerbate this impression.
  • A person explaining or discussing a specialist topic may avoid using the terms they should, with the result that they sound inexpert or unclear – example below.
  • Substitutions may not be seamless. Listeners may be able to hear that the person switched what they were going to say, which is likely to be perceived negatively. See the radio example below.
  • Filler words, hesitations, and audibly switching words can make it sound like the person needs time to think about what they want to say and is slow-thinking, or that they are dishonest.

Instead of saying “No, thank you”, someone who stammers might say for example: “Well, actually, actually, thank you, not for me thank you.”

If the person gets stuck on “map”: “Have you got the – thing that shows us where we go?”

“If I could just give you some numbers…., we have 30 – sorry, we have – we have a significant number of loans that went to businesses very quickly within 24-72 hours….”
Heard in a radio interview, October 2020. The speaker may or may not have had a stammer. However it sounds like a stammering behaviour, as if the person got stuck on saying eg “thousand” after “30”.

A person who stammers is explaining something to do with a topic with which both he and the listener are familiar. It might be in a work conversation or job interview, for example. The expectation to use a particular word often triggers the feeling that he will block. He therefore substitutes a shorter simpler substitute word which may not be synonymous with what it replaces, to keep the conversation flowing.

He is likely to sound like he is not expert in the topic, and/or is not communicating it clearly. The way he talks negatively alters the way others perceive him.

As a solicitor I once picked up the phone when I could see on the display that it was our very proper senior partner calling and said “Hi”, because I couldn’t get anything else out.

Jonathan Miller who had a stammer tells how he got on a bus wanting to go to Marble Arch and said: “Here’s the fare for the arch that is made of marble”. (He had a particular problem with m’s, the first letter of his name.) Also when narrating a TV series he left out several important figures whose names he couldn’t say.
Knotted Tongues, by Benson Bobrick, 1996, p.37; Stamma annual report 2019 at p.26.

A person may order a different drink in a pub or coffee shop because they can’t say what they really want. Eg ordering a latte rather than an Americano.

See too Wakefield v HM Land Registry (below), 2007, where the employment tribunal said the meaning the listener would glean was not the meaning which the speaker would like to convey. Also in a job interview, although the claimant might “get the answers out” without too much overt stammering, the meaning of the answers was distorted and the impression of superficiality created.

Can this count towards a stammer having a substantial effect on ability to carry on normal day-to-day activties?

Guidance

The 2011 Guidance indicates that yes it can count. Both substituting words and inserting words or phrases (such as fillers) are specifically mentioned in the paragraph D17 example (below Extracts from 2011 guidance):

“He sometimes tries to avoid stammering by substituting words, or by inserting extra words or phrases.”

The example implies that these are relevant towards a stammer having a substantial effect on normal day-to-day activities. The Guidance is not an authoritative statement of the law, but tribunals must take it (including this example) into account where relevant, and claimants should point it out to the tribunal.

That is the official guidance, but what are the legal arguments for saying that substituting/inserting words or phrases should be relevant to a stammer having a substantial effect?

Legal argument 1): Effect as the avoidance itself

It can be argued that word substitution and fillers should be taken into account under either of the two arguments discussed above. The first is ‘Effect’ as the avoidance itself.

The key issue under the statutory definition of disability is whether the adverse effect on one’s ability to carry out normal day-to-day activities is substantial. I would argue that what is normal, day-to-day for most people is being able to say the words they want, not having to switch or insert words all the time.

So one could argue that an effect of the stammer is that the person is not saying what they actually want to say, and (at least if it happens to a significant extent) that this is a substantial effect on their ability to carry out normal day-to-day activities.

What if that is not enough? The tribunal may not accept this argument and may want to see an effect beyond not being able to say the words one wants to. The claimant will therefore want to point out the negative effects of word substitution and fillers in their particular case, as discussed above, for example sounding inexpert, odd, vague, beating about the bush, long-winded, slow-thinking, dishonest. Their argument would be that this is at least part of the more than minor or trivial effect which their stammer has on normal day-to-day activities.

Wakefield v HM Land Registry (below), Employment Tribunal, 2007
The tribunal accepted that a stammer with covert symptoms was a ‘disability’. The claimant’s substituting of ‘easier’ words for something he could not say fluently might alter the whole gist of his message. The meaning which the listener would glean was not the meaning which the speaker would like to convey. Also as regards the duty to make reasonable adjustments, the tribunal accepted that the claimant was at a ‘substantial disadvantage’ in a job interview. Although the claimant might “get the answers out” without too much overt stammering, the meaning of the answers was distorted and the impression of superficiality created.

It is the effect on the individual which matters (Substantial effect>Effect on the individual), not whether their communication is below the population norm. Therefore it seems that a person who can communicate well while hiding their stammer, but who finds themself held back at work because it stops them achieving the unusually high level of communication required for a promotion, could say this is a relevant effect of the stammer:

Paterson v Commissioner of Police of the Metropolis, Employment Appeal Tribunal (EAT), 2007
The claimant had dyslexia. An employment tribunal found that the claimant was disadvantaged when compared to his non-dyslexic colleagues in a high pressure exam for promotion, but that he was not disadvantaged with reference to the “ordinary average norm of the population as a whole” and did not have a ‘disability’. He had produced high quality written work as a chief inspector. The EAT said the employment tribunal had applied the wrong test. One needed to consider how the claimant in fact carries out the activity compared with how he would do it if not suffering the impairment.

Legal argument 2): How the stammer would be without avoidance

Under the second argument above Effect as how the stammer would be if no avoidance, it can be argued that if a person would stammer if he were not switching words etc, that is an effect on his ability to carry out normal day-to-day activities, ie to speak the words he wants. If that stammer would be substantial (‘more than minor or trivial’) if he were not switching words or using fillers, then it can be argued that the statutory test is met.

Legal argument 3): Schedule 1 para 5

Alternatively, I believe one could strongly argue for same result under Equality Act Schedule 1 para 5, discussed under Discounting speech techniques etc. Schedule 1 para 5 requires the tribunal to discount measures being taken to treat or correct a disability. If Schedule 1 para 5 applies, the stammer is a disability if it “could well” have a substantial effect on normal day-to-day activities were the measures not being used. If it is right that word substitution and fillers can be seen as “measures”, the tribunal should look at whether the stammer “could well” have the required substantial effect if the person were not substituting words and/or inserting fillers. This brings a similar result to the argument above Effect as how the stammer would be if no avoidance. It is not clear whether or not a Schedule 1 para 5 argument will be accepted, but my view is that it should be. See also more specifically Discounting speech techniques etc>Word substitution and fillers.

Knowledge of stammer – possible defence by employer etc

Where a person has a covert stammer, other people may not be aware of the stammer. Or where someone has an overt stammer with additional hidden effects, people may not be aware of the extent of the stammer.

For some types of discrimination, the employer or service provider has a defence if it did not know and could not reasonably be expected to know of the disability. This will depend on the facts and what type of discrimination is being claimed. See Knowledge of disability.

However this not limited to actual knowledge – it is also relevant what the employer etc could reasonably be expected to know: What if the employer or service provider did not actually know? – taking reasonable steps to find out. Since it is so common for a stammer (and other disabilities!) to have hidden effects, it might be argued that the employer etc is on notice that there may well be hidden effects, provided the employer knows (or should know) of the stammer itself.

Even so the position is clearer if at the time of the potential discrimination the employer has been told about the extent of the stammer’s effects, so they have actual knowledge.

2011 Guidance

The 2011 Guidance includes an example on stammering which is helpful in taking account of avoidance/concealment strategies. There is also some more general discussion on avoidance strategies. The Guidance it is not an authoritative statement of the law, but tribunals must take it into account where relevant.

Extracts from 2011 Guidance:

“…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.”

Para D17 of 2011 guidance. It says ‘these’ cases because there are two non-stammering examples before this example.

The example in para D17 clearly indicates that hidden elements of a stammer should be taken into account.

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…

Para B24 of 2011 guidance. The example goes on to explain that, in any event, a substantial adverse effect is not required to bring a severe disfigurement within the Equality Act. This example is discussed in the text above: ‘Effect’ as the avoidance itself.

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.
Para B9 of 2011 guidance. This paragraph is discussed as regards social embarrassment above under ‘Effect’ as the avoidance itself, and more generally below Avoidance strategies – paragraphs B7-B9.

“An illustrative and non-exhaustive list of factors which, if they are experienced by a person, it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities……..

– 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…..”

Appendix of 2011 guidance.

Avoidance strategies – paragraphs B7-B9

Though not referring particularly to stammering, paragraphs B7-B9 in the 2011 Guidance have general discussion about using avoidance.

The paragraphs are not easy to understand. For example para B7 says “In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability.” But para B9 says “It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person.”

It is welcome that para B9 mentions substantial social embarrassment as something which may lead a person to avoid – this is very relevant to stammering. And it is this same para B9 which says it would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person. But what the guidance means overall is difficult to fathom.

The general thrust of these paragraphs is that account should be taken of how far a person can reasonably be expected to modify his or her behaviour, “for example by use of a coping or avoidance strategy”, to prevent or reduce the effects of an impairment. An example indicates, for example that it would be reasonable to expect a person who has chronic back pain to avoid extreme activities such as skiing, but it would not be reasonable to expect the person to give up, or modify, more normal activities that might exacerbate the symptoms; such as shopping, or using public transport. To my mind the paragraphs confuse two issues:

  • Yes one can see how the skiing example might make sense, because one is looking at an ‘extreme’ activity which has knock-on effects on ability to do other activities. I don’t know if it’s right in law, but one can see why the guidance might say that if the reason you can’t go shopping (a normal day-to-day activity) is that you did your back in going skiiing, despite knowing that’s the likely result, then that doesn’t count as a substantial effect on normal day-to-day activities
  • This is quite different from where the activity you might be expected to avoid is itself a normal day-to-day activity (eg making phone calls, socialising), and the question is how far the impairment affects one’s ability to do that activity which you avoid. This is the situation which applies to stammering. There is no basis in the wording of the Equality Act for saying that if it’s ‘reasonable’ to avoid a particular ‘normal day-to-day’ activity, then that activity somehow doesn’t count. Also bear in mind that one’s ability to do something can be affected even if one avoids it (see above Effect as how the stammer would be if no avoidance).

Cases

Wakefield v HM Land Registry, 2007, Employment Tribunal
There had been a tribunal case before this one where an Employment Tribunal had held the claimant’s stammer to be a disability. The employer had argued in the previous case that there was no disability, and had not accepted that the claimant managed at work only with difficulty. This, said the tribunal in the present case, completely ignored the covert nature of his symptoms. In the tribunal’s judgment, the employer was unwilling or unable to accept the clear message of a speech and language therapist’s report, that the mere fact that the claimant did not fall silent or stammer audibly was no proof at all that he had conveyed the message he would like to convey. His substituting of ‘easier’ words for something he could not say fluently might alter the whole gist of his message. The meaning which the listener would glean was not the meaning which the speaker would like to convey. (More: Wakefield v HM Land Registry: Covert nature of the stammer).

The present case involved a claim for reasonable adjustments at an interview for promotion. The Employment Tribunal’s decision that there was a breach of the reasonable adjustment duty was reversed on appeal, but not on the grounds discussed here. In the present case it was accepted that the claimant’s stammer was a disability. However, as regards the reasonable adjustment duty, the employer argued that the claimant was as disadvantaged in the interview as he claimed to be. The claimant had managed to give “fluent focussed and clear responses to questions” throughout the interview. “The tribunal commented that the employer’s argument ignored the speech and language therapist’s report about covert symptoms of the stammer. Although the claimant may “get the answers out” without too much overt stammering, the meaning of the answers is distorted and the impression of superficiality created. The interviewing panel’s notes included comments such as “didn’t answer L’s question”, and “did little in the interview to build on his paper application”. The reason given for rejecting him for the job was that his answers “failed to show in-depth experiences and examples. (More on this).

Before 2006 – the S v Lord Advocate case


Offical guidance dealing particularly with stammering and avoidance was first introduced in 2006, and has been continued into the present 2011 guidance (above).

Before 2006 we had the S v Lord Advocate case, where in 2000 an Employment Tribunal dealt with a largely concealed stammer.

S v The Lord Advocate (2000), Employment Tribunal
A lawyer with a stammer was turned down for a job. His DDA claim failed on the grounds that the stammer did not have a ‘substantial’ effect. His stammer was largely concealed and was held to be too minor to be a ‘disability.

The stammer did seem to have had a major effect on the applicant’s life. However, the Tribunal found that the stammer was not a disability on the facts, concentrating on how far the stammer had overt effects.

Even before 2006, I very much doubt that another Tribunal to whom the proper arguments were put would have followed this case. In particular the Goodwin case (see above Effect as how the stammer would be if no avoidance) does not seem to have been properly addressed. In any event, those drafting the 2006 Guidance were aware of the case, following representations made by the British Stammering Association. Both the 2006 and 2011 Guidance seem to try and steer tribunals away from the approach taken by in that case.

20th anniversary of stammeringlaw, 1999-2019