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Proving disability: impact statements and expert reports

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Last updated 28th October 2020 (part update 16th January 2021).

Note: I don’t run court/tribunal cases so I don’t have practical experience of evidence requirements.

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’.

Impact statements

Where the other side does not accept that the claimant has a disability within the Equality Act, the claimant will commonly produce an impact statement about the stammer, as evidence that they have a disability meeting the Equality Act requirements.

At some stage I may be able to say more about writing an impact statement in relation to stammering. For the time being, 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.

For a bit on taking the 2011 Guidance into account, see 2011 Guidance on definition of disability>Disability impact statement.

Expert evidence

Expert evidence can be useful in showing a stammer is a disability, eg evidence from a speech and language therapist (SLT).

Expert evidence is not always necessary. 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.

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).

Where might expert evidence be useful

Cases where having the backing of expert evidence may potentially be helpful include where it is contested:

  1. whether the claimant has a “disability” within the Equality Act;
  2. whether the claimant was put at a ‘substantial disadvantage’ so as to trigger the reasonable adjustment duty, and 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;
  3. whether the reason for unfavourable treatment was something arising in consequence of the stammer under s.15 EqA.

As I’ve said, I don’t run cases so I’m not experienced in evidence requirements. However I’d suggest that – mainly as regards proving the claimant has a disability (no 1. above) – cases where an expert opinion could be particularly valuable are:

Hidden effects of stammering

In Wakefield v HM Land Registry 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.

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 with this person and indeed with many people who stammer – that the stammer is having significant effects even though they are not evident.

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

Where substantial effects of a stammer have not yet lasted 12 months at the time of the discrimination, an expert opinion of whether it “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. The test is whether it could well do so as at the time of the discrimination.

Other cases where future development of the stammer is at issue

For example if one is not sure that the stammer has substantial effects on normal day-to-day activities at the moment but it has in the past and could well do so in the future, an expert report may be helpful as to what “could well” happen in future: Longer-term variations.

Experts on stammering: specialist SLTs

Generally the appropriate expert seems likely to be a speech and language therapist (SLT). Also I suggest it should be one with particular expertise in stammering, since 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. (Occupational health practitioners are used to writing reports on what is a disability within the EqA. An option might be an OH practitioner’s writing a report with advice from a specialist SLT, but I’m not sure how this would work.)

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

On some issues a different expert may be appropriate. Eg you might discuss with the SLT or any consultant involved who is the best person to say whether the substantial effect of a neurogenic stammer “could well” last 12 months.

The Stamma helpline (stamma.org) may be able to help in finding local SLTs, including those specialising in stammering. Bear in mind though that those listed below may be able to do a remote assessment via video call, even though they are not local. Apart from NHS SLTs generally (stamma.org), particular bodies mentioned on the Stamma website include:

For a private speech and language therapist, go to asltip.com, and under ‘Find a speech therapist’ select ‘Stammering’ to search for therapists with a speciality in it. One private stammering specialist who has a stammer, in London but offering online sessions, is Philip Robinson, harleystreetspeechtherapy.com.

Expert evidence: Guidelines for employment tribunals

Guidelines on expert evidence were given by the Employment Appeal Tribunal in the De Keyser case in March 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:

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