A stammer or other impairment may still fall within the Equality Act 2010 (EqA) definition of disability during “good patches” when it is not having a substantial effect. An impairment is treated as continuing to have a substantial adverse effect if that effect “could well” reoccur. Expert evidence of this is desirable.
Relevant time, and meaning of “long-term”
The claimant needs to show that at the time of the alleged discrimination their impairment met the legal conditions to be a disability within the EqA (Disability: Stammering starting in adulthood>‘Long-term’: Judged as at time of discrimination).
So normally the claimant needs to show that, at that time, the impairment had a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. A substantial effect is “long-term” if (at the time of the alleged discrimination) the effect has lasted at least twelve months, or is likely to – meaning “could well” – last for at least twelve months: EqA Sch 1 para 2(1) and below Likely to last 12 months. (It is also enough that the effect is likely to last for the rest of the person’s life.)
If an impairment ceases to have the required substantial adverse effect, it is treated as continuing to have that effect if the effect is likely to (ie could well) recur: EqA Sch 1 para 2(2), and below Likelihood of re-occurrence.
Application to stammering
(There is more technical detail on this below: Technical note: More on application to stammering.)
Long-standing stammer
For adults whose stammer started when young, and for older children, it is likely to be pretty clear that the required substantial effect is long-term, provided the effect was substantial at the time of discrimination or not all that long before. (Remember too that stammering may well have a substantial effect even during “good” patches.)
If the effect is substantial at the time of discrimination but was not for the whole of the previous twelve months, then under EqA Sch 1 para 2(2) it should be possible treat the effect as substantial in the “good patches” separating past periods when it was actually substantial. In any event, based on the person’s past history, they should be able to show that the substantial effect was – as at the time of the alleged discrimation – likely to (ie could well) continue for at least twelve months, under EqA Sch 1 para 2(1)(b).
If the effect on normal day-to-day activities was not substantial at the time of the discrimination (though probably one’s primary argument will be that the effect was substantial at that time), it can be argued that, based on past history, the substantial effect was – as at the time of the discrimation – likely to (ie could well) recur, so that the effect is treated as continuing under EqA Sch 1 para 2(2).
A stammer may temporarily improve after a therapy course (below), for example, or just due to natural fluctuation (below).
Stammer which started as an adult
If stammering started in adulthood, it is more likely to be an issue whether the required substantial effect has lasted or could well last 12 months at the time of discrimination, under EqA Sch 1 para 2(1). See separate page Stammering starting in adulthood.
Likelihood of re-occurrence
Where an impairment ceases to have a substantial adverse effect on ability to carry out normal day-to-day activities, the impairment is treated as continuing to have that effect if the effect is likely to re-occur (EqA Sch 1 para 2(2)).
How likely is “likely”? It just means that a re-occurence “could well happen”. It need not be “more probable than not”. This was held by the House of Lords in SCA Packaging v Boyle, 2009, which departed from a different interpretation given in the then 2006 Guidance. That decision is now reflected in para C3 of the 2011 Guidance, which says: “‘likely’, should be interpreted as meaning that it could well happen”. (There is also more on the meaning of “likely” in section C of the 2011 Guidance.)
Whether the effect could well re-occur should be assessed as at the time of the alleged discrimination. It is irrelevant whether a subsequent re-occurrence actually happened (Richmond Adult Community College v McDougall, 2008, Court of Appeal).
There is no requirement that the effect, were it to recur, would be likely then to last for 12 months (Swift v Chief Constable of Wiltshire Constabulary (bailii.org), EAT, 2004, at 31, cited by Roofe-Stewart v MacIntyre Care (bailii.org), EAT, 2025 at 42).
The Employment Appeal Tribunal (EAT) has said:
… for a combination of reasons, the legal bar set by the test of “likely to recur” is a very low one. First, the thing that must be likely to recur is the requisite substantial adverse effect, and “substantial” is defined in section 212 [EqA] as meaning “more than minor or trivial”. Secondly, “likely”, in this context, means “could well happen” (SCA Packaging Limited v Boyle …). Thirdly, if the requisite substantial adverse effect, is, at a given time, in that sense, likely to recur, then the impairment is deemed at that time, to be currently having that effect. There is no additional requirement that the impact, were it to recur, would be likely then to last for 12 months (Swift v Chief Constable of Wiltshire Constabulary …).
Roofe-Stewart v MacIntyre Care (bailii.org), EAT, 2025 at 42. Emphasis by me.
Expert evidence
It may be very helpful to get expert evidence that the substantial effect could well re-occur in future, assessed as at the time of discrimination: Proving disability: impact statements and expert reports>Expert evidence. Normally this would be from a speech and language therapist, in the case of a stammer.
How important it is to do so will doubtless vary. It may be easier to persuade a tribunal without expert evidence if the tribunal is convinced that the reduced effects at the time of the alleged discrimination are in the context of a long history of the effects of the impairment having reduced and then increased from time to time.
Likely to last 12 months
If the substantial effect has not yet lasted 12 months, at the time of the alleged discrimination, one needs to consider whether it is likely to last that long within EqA Sch 1 para 2(1)(b). As regards stammering, the main situation where this arises is stammering which started in adulthood: see separate page Stammering starting in adulthood.
The criteria followed here are much the same as for whether an effect is likely to recur:
- “Likely” means “could well”, it does not need to be more likely than not that the substantial effect will continue 12 months (SCA Packaging v Boyle, 2009).
- Whether the effect could well continue 12 months has to be assessed as at the time of the alleged discrimination. It is irrelevant whether it actually continues that long: Russell v Fox Print Services, 2010, on Disability: Stammering starting in adulthood>‘Long-term’: Judged as at time of discrimination.
- Expert evidence may well be helpful: Proving disability: impact statements and expert reports>Expert evidence.
Past disability
Most of the EqA’s protection extends also to past disabilities (EqA s.6(4); and see also EqA Sch 1 para 9 on which law is to be used.)
Thus a stammer, for example, can be protected as a past disability if its effects on normal day-to-day activities were substantial but are no longer (para C12 of 2011 Guidance).
It is not clear that this helps if the reason for the discrimination was the current stammer or other current impairment (ie the impairment as it was at the time of the discrimination) rather than the past impairment. However, hopefully in this case the tribunal might accept that the stammer etc at the time of the alleged discrimination had sufficient actual effects – or “could well” have sufficient future effects – to be treated as a present “disability”. Alternatively the rules on perceived disability may help.
Technical note: More on application to stammering
Stammering may have a “substantial effect” even during “good” patches
This page focuses on the rules about likelihood of recurrence. However, these rules may not be needed in a particular case, or may just be an alternative argument in case one’s main argument fails:
- Most imporantly, even in a “good patch” a stammer or other impairment may be having a substantial (ie more than minor or trivial) adverse effect on ability to carry out normal day-to-day activities – remembering to take into account any hidden effects. If so, there is a “disability” within the basic EqA definition. If that cannot be shown:
- In looking at periods when a stammer is much improved due to therapy or speech techniques, it should be remembered that the stammer might be treated as continuing as if the help weren’t here, so that the person is still “disabled” (see the section on “Therapy…”). However, this area is little explored as regards stammering, so tribunals may be more comfortable with the “likelihood of re-occurrence” argument.
It may be possible to argue discrimination in respect of a past disability, above, but the scope of this is unclear.
NB I write “good” patch while aware that the stammering pride movement (and indeed others before) do not see dysfluency as “bad” and fluency as “good”. Stammering is an alternative way of communicating. However, I can’t think of a readily understandable alternative phrase.
If effect is not substantial at time of alleged discrimination
Probably one’s primary argument will be that the effect of the stammer on normal day-to-day activities was substantial at the time of discrimination (above Stammering may have a “substantial effect” even during “good” patches).
However if that argument fails, but the effect was previously substantial, it could be argued that the substantial effect was – as at the time of the discrimination – likely to (ie could well) recur, so that the effect is treated as continuing under EqA Sch 1 para 2(2) (above Likelihood of re-occurrence). This argument should be particularly strong if the claimant has a long history of their stammer having had substantial effects, probably since being a young child.
Long-standing stammer, but effect not substantial for whole of past 12 months
Again, probably one’s primary argument will be that the effect of the stammer on normal day-to-day activities was substantial for the whole of the 12 months up to the discrimination (above Stammering may have a “substantial effect” even during “good” patches). But what if a tribunal finds the effect was substantial at the time of the discrimination, but there was a period within the past 12 months when it wasn’t?
1. Linking up previous recurrences
In that situation, under EqA Sch 1 para 2(2) it should be possible treat the effect as substantial in the times (the “good patches”) between past periods when it was actually substantial. Para C6 of the 2011 Guidance on definition of disability gives the example of a man with polar affective disorder (a recurring form of depression), where the first episode occured in months one and two of a 13-month period, and the second episode took place in month 13. The example says that this man will satisfy the “long-term” requirement, because the adverse effects have recurred beyond 12 months after the first occurrence, so they are treated as having continued for the whole period (here 13 months). Whilst the 2011 Guidance is not binding, and it might be argued that how EqA Sch 1 para 2(2) applies to past recurrences (ie recurrences before the alleged discrimination) is not crystal clear from its wording, I don’t recall ever seeing this disputed.
Para C6 contrasts that bipolar example with a person who has two discrete episodes of depression, if there is no evidence to show the two episodes arose from an underlying condition of depression. Stammering though would surely be seen as an ongoing underlying condition, at least with appropriate expert evidence.
2. Looking forward
Alternatively, or in addition, it could be argued that the substantial effect which was there at the time of the discrimination was – as at that time – likely to (ie could well) continue so as to last at least 12 months, within EqA Sch 1 para 2(1)(b). Again, this argument should be particularly strong if the claimant has a long history of their stammer having had substantial effects, probably since being a young child.
Stammer which started as an adult
If stammering started in adulthood, it is more likely to be an issue whether the required substantial effect has lasted or could well last 12 months, within EqA Sch 1 para 2(1)(b). Stammering starting in adulthood is less common than stammering starting in early childhood. This page focuses on a long-standing stammer. See separate page Stammering starting in adulthood.
Likelihood of relapse after course?
One example where the likelihood of re-occurrence rule could apply is where a significant stammer pretty much disappears because of a recent therapy course (where the arguments at “Therapy…” may perhaps also help).
If the substantial effect of the stammer on normal day-to-day activities could well re-occur (not necessarily permanently, not even for 12 months), the person is still treated as disabled under the EqA.
Re-occurence is likely to be a very real possibility, as relapse after treatment is a significant issue for people who stammer. But expert evidence may perhaps be needed to persuade a tribunal of this.
Natural fluctuation of stammer
The likelihood of re-occurrence rule could also apply where a stammer just varies over time.
Say even that a person may have become substantially fluent after having had a more severe stammer and can only now expect the occasional difficult patch. It might be argued that the substantial effect of the stammer is treated as continuing provided the person could well occasionally – possibly even rarely – have times when the stammer has the required more than minor or trivial effect on ability to carry out normal day-to-day activities.
Again expert evidence may be helpful.
