This page deals with possible legal arguments that any stammer counts as a ‘disability’ within the Equality Act (or previously the DDA) – unless it has no effect on fluency in normal day-to-day activities. These arguments are significantly strengthened by Guidance, but we will have to see what view tribunals take of the issue.
Equality Act and 2011 Guidance
The argument is basically that in the case of a stammer, any effect on fluency in normal-day-to-day activities will be more than minor or trivial, since any stammer will go beyond the occasional lapses of fluency which anyone may have. There is a shortish outline of the argument at ‘Is any stammer covered’ on the ‘Substantial effect’ page.
Stammering goes beyond normal dysfluencies – para B1
Para B1 of the 2011 Guidance says that the requirement that there be a substantial effect “reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people” (see box). This test which also appeared in the 2006 guidance was used in Paterson v Commissioner of Police of the Metropolis (2007).
Anyone can have some ‘dysfluencies’ in getting their words out, for example when they are temporarily upset, embarrassed, confused, in a hurry. This is not intended to be a ‘disability’.
However, the condition of ‘stammering’ is something beyond the dysfluencies which occur to most people. It occurs only in about 1% of the adult population. People who stammer can have ‘fluent’ dysfluencies like anyone else. However, they have a stammer on top of that.
In particular, people who stammer sometimes simply cannot get the word out, or sometimes have to use a special speech technique to get the word out. This is not the kind of dysfluency which non-stammerers have – such as when a person is unsure of how to say what he wants and maybe stumbles while trying to sort it out.
It can therefore be argued that the effects of a stammer on fluency should necessarily be seen as substantial, because they do go beyond people’s normal dysfluencies, even if they are ‘minor’. This should be sufficient to bring the stammer within the Equality Act, assuming the effects are in normal day-to-day activities.
Extracts from 2011 Guidance
Para B1: “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. A substantial effect is one that is more than a minor or trivial effect….”
Example in 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.”
[It says ‘these’ cases because there are two non-stammering examples before this example.]
This seems to be reflected in the para D17 example (see box), which says that the person’s “stammer, particularly in telephone calls, goes beyond the occasional lapses in fluency found in the speech of people who do not have the impairment.” The example says the effects (which may be hidden) would be substantial adverse effects.
Is it sufficient that the stammer goes beyond the occasional lapses of fluency anyone may have, or does there also need to be the avoidance behaviour as described in the example? This is not clear, though the emphasis in the example does seem to be on the effect (going beyond normal lapses), which can however be hidden. The explanation that effects may be hidden is very important in making clear to tribunals and others that they should not just take into account ‘overt’ stammering, that a lot of stammering happens ‘beneath the surface’.
This example is accordingly helpful to the argument that any stammer with some effect on fluency in a normal day-to-day activity can fall within the Equality Act. One would expect any stammer to go beyond the occasional lapses of fluency which ‘fluent’ people may have.
Minor or trivial
‘Substantial’ means only ‘more than minor or trivial’. It does not mean ‘very large’. From 1st October 2010, this definition of ‘substantial’ is in s.212(1) EqA. However, it was also the definition used under the DDA before then.
This is helpful in giving “trivial” as an alternative word to minor. It is not easy to contemplate a stammering condition that is ‘trivial’. (See however Anwar v Tower Hamlets College (2010), but this was before Equality Act 2010 introduced a statutory definition.)
A problem solved – previous bullet point example on minor speech impediments
Para D25(1) in the previous 2006 Guidance said it would not be reasonable to regard as having a substantial effect:
“inability to articulate fluently due to a lisp or other minor speech impediment”
This wording was very odd (a lisp does not affect fluency, but might be read as saying inability to articulate fluently due to a ‘minor’ stammer is not a substantial effect.
However, this has been changed in the 2011 guidance so that it clearly does not refer to stammering. The new version just says that “Inability to articulate certain sounds due to a lisp” would not be seen as having a substantial adverse effect.
Human Rights Act and European Convention
Article 14 of the European Convention on Human Rights covers discrimination based on “any ground”, such as sex, race etc “or other status”, and it can cover disability.
It is very possible that a person who clinically has a stammer and suffers discrimination because of it is protected by Article 14, even if its effects on normal day-to-day activities are not “substantial”. It could be argued that the person is discriminated against on the ground of having a stammer, and that is ‘any other status’.
Generally ‘other status’ has been interpreted widely in case law. In R.M. v UK (Appl. No. 22761/93, see European Court of Human Rights website) the UK Government seems not to have contested that HIV/AIDS fell within Article14. Also it appears to make more sense than saying the ‘status’ on the basis of which discrimination occurs is having an impairment which has a more than minor or trivial effect in normal day-to-day activities. (There is more that could be said here, particularly on cases giving a wide meaning to ‘other status’ – I will expand on this when I can.)
Assuming this interpretation of Article 14 is correct, then in areas to which Art 14 applies the Equality Act should where possible be interpreted to be consistent with it. Article 14 only applies to matters falling within the ambit of another Convention right. However, the Convention and the Equality Act overlap in the areas of education and the courts, for example. Also there are growing indications from the European Court of Human Rights that employment discrimination may fall within the Convention: see Scope of European Convention rights. Where the Convention applies, the Equality Act rules – including the ‘disability’ definition – should be interpreted consistently with Article 14.
Some areas may be outside the Convention, but this has yet to be clarified.
The Directive talks of discrimination on the ground of “disability”, without defining the term. It has no exclusion for minor disabilities. The issue is therefore whether the term ‘disability’ inherently excludes some or all ‘minor’ conditions.
It will be for the European Court of Justice to decide minimum standards of what must be treated as a ‘disability’. So far the ECJ has considered the meaning of ‘disability’ in the case of Navas v Eurest Colectividades SA (2006).
Update 2013: See the European court decision in Ring v Dansk almennyttigt Boligselskab (2013) which may be helpful in pointing up the importance of barriers created by people’s attitudes, rather than just focussing on how the impairment affects a person’s abilities.
Policy issues and possible change in law
From a policy point of view, one might argue that anyone who stammers and faces discrimination because of that should be within the Equality Act. If a stammer is enough to cause discrimination, it should be enough to fall within the Equality Act.
Furthermore, say a candidate is turned down because he stammers mildly at an interview. Compared with someone who stammers more severely, there is less likely to be a justification for turning him down, but he may have more difficulty getting within the Equality Act because his stammer is only mild.
All this is not really relevant to arguments on what is the current legal position. However, for the longer term, the Disability Rights Commission recommended that the Equality Act definition of ‘disability’ should be broadened so that the law provides protection against discrimination on the grounds of impairment, regardless of the level or type of impairment. This is not currently accepted by the Government. More on possible changes to definition…