Proving disability: impact statements and expert reports

Note: I don’t run court/tribunal cases so I don’t have practical experience of evidence requirements. Do get legal advice if possible.

Burden of proof is on claimant

The employer etc may accept that the stammer is a disability. If not, it is for the claimant to show on a balance of probabilities that the stammer meets the legal test of being a “disability” within the Equality Act.

Showing the Equality Act requirements are met

Evidence that the stammer is a disability within the EqA is likely to be in the form of:

• a disability impact statement (below),
• often expert evidence (below), most usefully from a speech and language therapist, but also from the claimant’s GP and any other medical evidence available
• oral evidence from the claimant, and from anyone else the claimant brings as a witness (or perhaps from cross-examining the respondent’s witnesses).

The claimant needs to show the stammer is a disability as legally defined in the Equality Act. The main issue is normally whether the stammer has a “substantial” effect (meaning only a “more than minor or trivial” effect) on the claimant’s ability to carry out “normal day-to-day” activities. That substantial effect also needs to be “long-term” (broadly at least 12 months), which is mainly an issue if the stammer started in adulthood.

It is clearly helpful for the impact statement and any expert report to address the legal requirements of the “disability” definition, particularly the stammer’s substantial effect on normal day-to-day activities. For example, as well as including the more obvious effects of the stammer:

• In an employment claim, nearly any work activity is likely to be a “normal day-to-day” activity, eg occasional work presentations. But include too effects on normal day-to-day activities outside work, which are also relevant.
• It is often forgotten (not just on stammering) that tribunals can be required to discount the effect of ongoing measures which counter the impairment (eg drugs, prostheses hearing aids), and to consider whether the effect of the impairment “could well” be substantial without them. For example tribunals are arguably required to discount the effect of ongoing speech techniques the claimant is using, and certainly any electronic aids. The tribunal may well expect expert evidence (probably from a speech and language therapist) as to whether the effect of the impairment could well be substantial without the speech techniques etc. Of course the effect of the stammer may be substantial even with the techniques, but discounting them is an extra argument. See Discounting speech techniques etc.
• The claimant’s feelings around his speech and stammer may not in themselves be a relevant effect on normal day-to-day activities. However in practice these feelings will usually affect the claimant’s behaviour in various ways. So specify real-world effects, for example how far does the claimant avoid some situations, not speak up, say less, or otherwise not say what they really want: see Hiding the stammer. As discussed on that page, swapping words and the like may also be relevant effects.
• In case any strategies are not discounted (previous bullet point), give specifics on how the strategies sometimes break down (para B10 of the 2011 guidance). A general statment to that effect did not prevail against evidence of work colleagues in N v Packaging Automation.
• I’d argue that any negative reactions from listeners are also helpful in showing adverse effect of a stammer. They help show the social cost of speaking “differently”. This seems to be supported by C v Menzies Aviation, a 2021 tribunal decision on stammering.
• Do particularly try to include anything given as an example or stated to be relevant in the official 2011 guidance on disability, while of course not limiting the impact statement or report to that. See also 2011 Guidance on definition of disability>Disability impact statement.
• Observations of tribunal in hearing
• A tribunal’s decision may well be influenced by how one speaks in the tribunal. Therefore it seems a good idea, if one sounds pretty fluent in the tribunal, to expressly address in evidence how this is consistent with the stammer having a more than minor or trivial effect on ability to carry out normal day-to-day activities. See below Observations of tribunal in hearing.

In M v Manchester Rusk Co, 2023, the claimant was held not to have presented enough evidence to show his stammer was a disability. Among other things, the tribunal pointed to the lack of any details or examples in his evidence, particularly around the time of events for which he was claiming. For example, regarding alleged difficulties in shopping, he provided no specific details of incidents in which he outlined any difficulties he had encountered, or when they had occurred. Also the tribunal itself observed very little stammering in the video hearing.

N v Packaging Automation is a 2021 case where the claimant – through his impact statement and oral evidence – did not present enough evidence to persuade the tribunal his outwardly “slight” stammer was within the EqA. There is a Stamma press statement (mynewsdesk.com) issued in response to this decision (“Stamma” = the British Stammering Association). Among other things, the statement encourages people bringing stammering discrimination claims to get a report from a speech and language therapist, and seek legal advice and work with Stamma to prepare appropriate evidence of the impact of their stammer. “This way future judgments can reflect the reality of the lives of people who stammer.”

C v Menzies Aviation is another 2021 case where the claimant presented an impact statement plus a report from a specialist speech and language therapist. The tribunal accepted that his stammer was a disability, saying he had clearly demonstrated an impact that was much more than trivial. Admittedly the effects of the stammer were probably more obvious than in N v Packaging Automation.

Impact statements

Where the other side does not accept that the claimant has a disability within the Equality Act, the claimant commonly produces an impact statement about the stammer, as evidence that the stammer meets the Equality Act requirements for being a disability.

I’d suggest be honest but don’t hold back. There can be a tendency to play down effects of one’s stammer, or take them for granted.

At some stage I may be able to say more about writing an impact statement in relation to stammering, but there are some ideas at Showing Equality Act requirements are met (above). Two examples of impact statements:

• Proving disability and reasonable adjustments (pdf, equalityhumanrights.com), 2014 includes an example of a professionally drafted disability impact statement for someone with a heart impairment, with tips and other guidance. The sample impact statement itself is on pages 23-24.
• Stammering case with impact statement, 2020 – an impact statement and other documents written by the claimant in a 2020 case, arguing that a severe stammer was a disability within the Equality Act. The documents illustrate that even with a severe stammer, an employer may still demand evidence and try and pick holes in an argument that the stammer is a disability. The employer did eventually accept it was a disability, without the issue going to the tribunal.

Expert evidence

Expert evidence can be very helpful in showing a stammer is a disability within the EqA, for example evidence from a speech and language therapist (SLT) (below). There are also other EqA issues where expert evidence can be helpful (below).

Expert evidence: GP

Any evidence from the claimant’s GP will normally be put to the tribunal, though GPs do not normally know much above stammering. Evidence from the GP should be helpful at least in confirming that the claimant has a stammer and perhaps has had one for many years. It can also include anything else relevant in the GP’s records, such as speech therapy. However it may not necessarily be able to say much about the effect of the stammer in the claimant’s life, which is particularly important in showing it is a disability.

Expert evidence: Speech and language therapist (SLT), expecially if specialises in stammering

Normally the most useful expert is likely to be a speech and language therapist (SLT). Also I suggest it should be one with particular expertise in stammering. SLTs cover a very wide range of disorders and (as I understand it) many will have spent very little time on stammering in their training.

The SLT may not be familiar with the EqA definition of disability, and so what questions have to be addressed in the report. They may need to look into this. I include a few points to consider including in Showing Equality Act requirements are met, above.

There is likely to be a charge to obtain a report. In some cases the tribunal or employer might pay.

A different medical expert may be appropriate for some issues. For example if it is a stammer starting in adulthood, you might discuss with the SLT or any consultant/specialist involved who is best placed to give an opinion on whether the substantial effect of a neurogenic stammer “could well” last 12 months.

The Stamma helpline (stamma.org) may help in finding local SLTs, or other suitable SLTs to write a report. Even SLTs who are not local, including those linked below, may be able to do a remote assessment via video call. Apart from NHS SLTs generally, particular bodies mentioned on the Stamma website include:

• City Lit (stamma.org) in London, a centre of excellence on adult stammering, which therefore has SLTs specialising in this
• Michael Palin Centre (stamma.org) in London.

For a private speech and language therapist, go to asltip.com. On the “Find an SLT” page, under “Conditions treated” select “Stammering” to search for therapists who hopefully have a speciality in it. One private stammering specialist who has a stammer, in London but offers online sessions, is Philip Robinson, harleystreetspeechtherapy.com.

Where is expert evidence more important?

Normally one would include evidence from the GP anyway. But how far is evidence from a speech and language therapist (SLT) necessary?

I don’t run cases so I’m not experienced in evidence requirements. Do get legal advice if possible.

I’d say expert evidence is not always necessary – though it will often be wise for the claimant to bring it if possible. An example of a claimant showing his stammer was a disability without expert evidence is S v Translink, though the claim here failed because the tribunal decided there was no discrimination.

In the context of proving the claimant has a disability (for other areas see below Relevance of SLT report apart from whether there is “disability”) I suggest an expert opinion could be particularly valuable if the claimant needs to show more than visible current effects of the stammer:

Hidden effects of stammering

Where effects of the stammer are largely invisible to a listener, it may be helpful to have an expert explain to the tribunal that that’s how it is for this person and indeed for many people who stammer – that the stammer is having significant effects even though these are not evident.

In Wakefield v HM Land Registry, 2009, the SLT’s report seems to have been important evidence of the effects of the stammer, particularly hidden effects. That’s the one employment tribunal I’ve seen (unfortunately overruled on appeal) where the tribunal really “got” stammering.

In N v Packaging Automation, 2021, there was no SLT report. The tribunal decided the claimant had not presented enough evidence to persuade the tribunal that his outwardly “slight” stammer was within the Equality Act. More evidence of real-world hidden effects from the claimant himself might have been enough, especially since the tribunal appreciated from the Equal Treatment Bench Book that effects may be largely hidden. However an SLT report making the right points may have significantly increased his chances.

Whether a stammer which started in adulthood is “long-term”

If the substantial effect of a stammer had not yet lasted 12 months at the time of the discrimination, an expert opinion of whether the effect “could well” last 12 months may well be important. It is irrelevant that you know at a later stage, eg at the time of tribunal proceedings, that the effect has (or hasn’t) lasted 12 months in total. The test is whether it could well do so as at the time of the discrimination.

Expert evidence is likely to be really important here, either from a speech and language therapist or other appropriate medical professional. Without medical evidence it is likely to be difficult (perhaps impossible) to persuade a tribunal that the effect could well last the required amount of time into the future.

Discounting effect of speech techniques etc

A person claiming in relation to a stammer that the tribunal should discount the effect of speech techniques etc should consider getting expert evidence from a speech and language therapist, to support their argument that the stammer could well have the required substantial effect if the speech techniques etc were not being used.

Other issues as to future effect of the stammer

For example, if one is not sure that the stammer has a substantial effect on normal day-to-day activities at the moment but it has in the past and could well do so in the future (relapse), an expert report is likely to be helpful to convince a tribunal what effect it “could well” have in future: Longer-term variations.

Expert evidence: Relevance of SLT report apart from whether there is “disability”

This page is about the claimant showing they have a “disability” within the Equality Act. However expert evidence, probably from a speech and language therapist (above), can be relevant for other Equality Act issues as well, if these are contested. They include:

1. Whether the reason for unfavourable treatment was something arising in consequence of the stammer under s.15 EqA. In G v The Insolvency Service the tribunal did accept the claimant’s “compelling and persuasive” evidence that he limited what he said in his interview answers due to the stammer. However the tribunal commented that it would have benefitted from expert evidence of the effect the stammer had specifically on him: G v The Insolvency Service>Comments: Lesson on getting expert evidence about causal link.
2. Whether the claimant was put at a “substantial disadvantage” so as to trigger the reasonable adjustment duty on an employer.
3. Perhaps whether the adjustment claimed is likely to be effective in alleviating the disadvantage. As in Wakefield, an SLT report may suggest adjustments which would be helpful.
4. On a reasonable adjustment claim against eg a service provider or education provider, whether people with the same kind of disability (eg people who stammer) are more likely to be put at a disadvantage, eg Reasonable adjustments by service providers>No need for all people who stammer etc to be disadvantaged, Oral assessments at university: the rules>Reasonable adjustments: Anticipatory duty.
5. On a claim for indirect discrimination, whether people with the same kind of disability (eg people who stammer) are more likely to be put at a disadvantage: Indirect discrimination>Are people who stammer more likely to be disadvantaged?

Expert evidence: Presidential guidance to tribunals on whether it is required.

Expert evidence is not always necessary – though it will often be wise for the claimant to bring it. Guidance Note 4: Disability (page 13) in the Presidential Guidance – General Case Management: Employment Tribunals, England and Wales (pdf, judiciary.uk), 2018, on employment tribunals says:

“3. A claimant who relies upon the protected characteristic of disability may be able to provide much of the information required without medical reports. A claimant may be able to describe their impairment and its effects on their ability to carry out normal day to day activities. …”
The guidance goes on to consider disclosure of relevant medical records and use of expert evidence.

Expert evidence: EAT guidelines for employment tribunals

The Employment Appeal Tribunal gave guidelines on expert evidence in the De Keyser case, 2001. (See also discussion in para 26-32 of GCHQ v Bacchus (bailii.org), 2012). For example, joint instruction of a single expert is generally preferred. It may be possible to have the Employment Tribunal pay the costs of a medical report ordered by it.

Links on expert evidence:

• Guidance Note 4: Disability (from page 13) in the Presidential Guidance – General Case Management: Employment Tribunals, England and Wales (pdf, judiciary.uk), 2018. Non-binding guidance issued by the President of the Employment Tribunals.

Observations of tribunal in hearing

Tribunals can and do take into account, along with the evidence presented, how far any impairment appears to have an effect in the tribunal hearing, although they should appreciate it may not be representative of behaviour generally. Since a tribunal’s decision may well be influenced by how one speaks in the tribunal, it seems a good idea – if one sounds pretty fluent in the tribunal – to expressly address in evidence how this is consistent with the stammer having a more than minor or trivial effect on ability to carry out normal day-to-day activities.

M v Manchester Rusk Co, Employment Tribunal, 2023
The claimant gave evidence that his speech difficulties were often when he was placed in a stressful situation. The tribunal said in its decision that it could not think of a more stressful situation than having to give evidence before a tribunal, and that the claimant had stammered very little when doing so, in the video hearing. This was part of its reason for holding the claimant had not shown his stammer was a disability.

The tribunal in this case does not seem to have put to the claimant that it was proposing to draw this conclusion, so that he could have a chance to answer it (cf M v Manchester Rusk Co>Comment: Observations of tribunal). The EAT has said that tribunals should do this, though failure to do so is not necessarily an error of law:

Commissioner of Police of the Metropolis v Ekpe, EAT, 2011
The EAT held, on other grounds, that a wasting of the intrinsic muscles of the claimant’s right hand was a disability. However the EAT rejected her ground of appeal that the tribunal was wrong to have regard to the way she handled a ring-file binder in the hearing. The tribunal’s decision on the impact of her impairment on normal day-to day activities would quite properly be influenced by her behaviour as demonstrated before the tribunal. However:

“42. …That said, we would expect any Tribunal considering whether to draw any conclusion from such behaviour to raise that possibility at the hearing, so that it may be dealt with. It should bear in mind that behaviour before a Tribunal may not be representative of behaviour generally. In the case of some conditions, notably back conditions, there may be “good days and bad days”. In others, an applicant may put on a brave face, and this may be misinterpreted. Particularly where there is expert medical evidence available, any tentative conclusion to be drawn from observation of the applicant by the inexpert eyes of the members of the Tribunal should ideally be raised with those experts to see whether there may not be some ready explanation for it. Nonetheless, we cannot say that in the present case the Tribunal’s failure to take those steps amounted to an error of law. It was presented with an applicant who was apparently claiming that there was very little she could do with her right hand, yet it saw her doing a lot. It was in our view entitled to take that into account in helping to determine that other complaints made by her were exaggerated.”

Appearing in an employment tribunal is not itself a normal day-to-day activity (for most professions). So a substantial effect of a disability in the hearing does not necessarily mean there is a substantial effect in normal day-to-day activities: Herry v Dudley Metropolitan Council (bailii.org), EAT, 2016 at §64.