This page deals with a possible argument against avoidance being seen as a ‘substantial’ effect of a stammer. For avoidance as a ‘substantial’ effect, see my ‘Hiding the stammer’ page.
A possible argument, mentioned by the tribunal in S v The Lord Advocate, is that a person who avoids due to a stammer is no different from someone who is extremely shy, and does not have a “limitation going beyond the normal differences of ability which might exist among people” (now para B1 of the 2011 Guidance).
There are two preliminary points to make on that.
One is that stammering is a physical or mental impairment – so the question is whether the stammer has the required ‘substantial’ effect on ability to carry out normal day-to-day activities. Presumably shyness may or may not be a (mental) impairment, depending on the circumstances.
Secondly one is only talking here about avoidance so far as it is of a kind which an extremely shy person might do – so for example avoiding certain situations but not substituting words.
To come to the main point, does the fact that an extremely shy person may not have an impairment but still avoid in the same way as a person who stammers mean that the avoidance of the person who stammers does not have a ‘substantial effect’? I would say surely not.
The tribunal seems to have based its view on the wording in para B1 about limitations “going beyond the normal differences of ability which might exist among people”. However this is to take the wording out of context. Para B1 also says that substantial effects are those which go beyond the sort of physical or mental conditions experienced by many people which have only ‘minor’ or ‘trivial’ effects. Also cases such as Goodwin v Patent Office have clarified that substantial means only ‘minor or trivial’. Taking an extremely shy person as a comparator is inconsistent with that.
The argument would also be also difficult to reconcile with paragraph B9 of the 2011 Guidance, which specifically mentions avoidance due to substantial social embarrassment.
Finally, it should be borne in mind that the argument does not affect there being a substantial effect in terms of how the person would speak if they did not avoid.