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.
- Though I’m not aware of any cases on it, 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”.
- 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.
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 Equality Act. 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.”
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 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).
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
- Airedale NHS Foundation Trust which offers nationwide teletherapy online as well as local services
- 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, 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:
- whether the reason for unfavourable treatment was something arising in consequence of the stammer under s.15 EqA, and
- whether the claimant was put at a “substantial disadvantage” so as to trigger the reasonable adjustment duty,
- 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.
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.