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Disability: “Substantial” effect

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Last updated 28th April, 2023.

To be a ‘disability’ within the EqA, the main requirement is for the stammer to have a substantial adverse effect on the person’s ability to carry out normal day-to-day activities. This page looks at what actual (overt) stammering is a “substantial” effect. Less obvious effects can also be important, such as Hiding the stammer.

Summary

Summary: Key points

Since a stammer is nearly always “long-term” (ie more than 12 months), whether the stammer is a disability within the Equality Act 2010 (EqA) normally depends on whether it has a “substantial” effect on one’s ability to carry out “normal day-to-day activities” (separate page).

It is important to bring sufficient evidence that one’s stammer has the required substantial effect on ability to carry out normal day-to-day activities, if this is disputed: Proving disability: impact statements and expert reports (separate page).

Summary: Further points

  • Other factors (below) to be taken into account in deciding whether the effect of an impairment is substantial include:
    • the way in which the activity is carried out,
    • cumulative effects, including potentially with other impairments,
    • variability and environmental conditions. Disabilities need not occur all the time to fall within the EqA. Environmental conditions, including tiredness, stress or conditions at work, may increase the effect of an impairment, and those effects are relevant: below Variability – tiredness, stress, environment etc.
  • A job interview may well itself be a “normal day-to-day activity”, so that a more than minor or trivial effect in interviews is arguably enough. In any event, effects in the job are likely to be relevant. Below Effect in job interview.
  • It can be argued that a stammer may have the required substantial adverse effect despite the person being an excellent communicator: below May be an excellent communicator.
  • A stammer which no longer has a substantial adverse effect is treated as continuing to have one if such an effect could well re-occur in future: Longer-term variations (separate page).
  • Numerous cases (below) have considered whether a stammer was a disability.

This page focuses on effects which are evident to other people (“overt” effects). There are separate pages on Hiding the stammer and Discounting speech techniques etc.

Even if a stammer does not actually have a substantial effect on normal day-to-day activities, on a claim for direct discrimination or harassment it is likely to be enough that the employer (or service provider etc) perceives it to have that effect: see Perceived disability (separate page).

Stammering example in 2011 statutory guidance

“…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 [this case] there are substantial adverse effects on the person’s ability to carry out normal day-to-day communication activities.”

Para D17 of 2011 statutory guidance. In the original, the second paragraph says “In these cases…” because there are two non-stammering examples before this one.

This is not trying to set out preconditions a stammer must meet to be a “disability”. It is only an example in the guidance. However, the example illustrates in a concrete way that the threshold is a low one (below). It is likely that very many people who stammer will be able to see themselves in this example. The person may have quite a mild stammer (though he also avoids words etc) – but it goes beyond the normal dysfluencies (below) that ‘fluent’ speakers have. Normal speakers do not generally have difficulty getting their words out.

Similarly, this example should not be read as a law. The statutory guidance, including this example, is not binding on courts. However legally courts should where relevant take account of the guidance, including this example, when deciding whether an impairment has the substantial effect required to be a disability (Legal effect of statutory guidance and codes, and below “More than minor or trivial”).

This example also helps raise courts’ awareness of hidden effects of stammering. Since 2021 so does the Equal Treatment Bench Book, which the tribunal in N v Packaging Automation cited as warning courts that there may be hidden effects.

The 2011 statutory guidance including this example applies in Great Britain, but not in Northern Ireland.

“More than minor or trivial”

“Substantial” means “more than minor or trivial” (s.212(1) EqA). Substantial does not mean “very large”. The threshold is not high.

The question is therefore whether the impairment’s adverse effect on the individual’s ability to carry out normal day-to-day activities is “minor or trivial”. If the effect is not “minor or trivial”, it is “substantial”:

Aderemi v London and South Eastern Railway, Employment Appeal Tribunal (EAT), 2012
The EAT explained: “[Substantial] means more than minor or trivial. In other words, the [Equality] Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other.”

The EAT cited this decision with approval in Elliot v Dorset County Council, 2021 (below). See also on the Aderemi case 2011 Guidance on definition of disability> No ‘spectrum’ between examples of what is and isn’t a disability.

The EqA says the courts should take the 2011 guidance into account where relevant: Legal effect of statutory guidance and codes. However the EAT has stressed the importance of the statutory wording, namely “minor or trivial”, in:

Elliot v Dorset County Council, EAT, 2021
The issue was whether the claimant’s Asperger’s syndrome had a “substantial” effect on his ability to carry out normal day-to-day activities, so as to be a disability under the EqA.

The 2011 statutory guidance says that the requirement for the effect to be substantial “reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people” (below Going beyond normal differences between people: outline). The employment tribunal in Elliot had applied this statement in the guidance, holding that the claimant’s Asperger’s syndrome was not a disability partly because the claimant did not find it substantially harder than other people to speak in public and to socialise. The employment tribunal had said that many people find public speaking and socialising difficult, and many people adjust their behaviour to manage these occasions.

On appeal, however, the EAT emphasised the importance of starting from the statutory wording – namely “minor or trivial”. Tribunals should not view the 2011 guidance as a statute. The EAT overruled the tribunal decision, partly because the tribunal had not focused on assessing whether the effect of the impairment was “minor or trivial” compared with how that individual would be without the impairment. The EAT said:

“31. … I do not downplay the great assistance that the Code and Guidance often provide; but they are not to be followed without thought, to be construed as if statutes; and must always give way to the statutory provisions if, on a proper construction, they differ from the Code or Guidance. Where consideration of the statutory provision provides a simple answer, it is erroneous to find additional complexity by considering the Code or Guidance.

32. There is a statutory definition of the word “substantial” as “more than minor or trivial”. The answer to the question of whether an impairment has a more than minor or trivial effect on a person’s ability to carry out day-to-day activities will often be straightforward. The application of this statutory definition must always be the starting point. We all know what the words “minor” and “trivial” mean. If the answer to the question of whether an impairment has a more than minor or trivial adverse effect on a person’s ability to perform day-to-day activities is “yes”, that is likely to be the end of the matter. It is hard to see how the answer could be changed from “yes” to “no” by further pondering the Code or Guidance. …

34. The Guidance and Code are most likely to be useful where the answer to the question is unclear. If the answer is clear it may not be necessary to consider the Guidance or Code at all. ….

38. … If the adverse effect has a more than minor or trivial effect on the ability of a person to carry out day-to-day activities the definition is met; no consideration of the abilities of some group of people, or section of the population [as set out in the 2011 guidance], can alter that determination. …”

Focus on what the person has difficulty with

Tribunals must not look across the range of activities and balance what a person can do fine against what the person cannot do or has difficulty with. The focus is on what activities the person cannot do, or has difficulty with.

Commissioner of Police of the Metropolis v Ekpe, EAT, 2001
“It is not a question of balancing individual losses of function directly against retained abilities. …the question ‘Has manual dexterity been affected?’ in circumstances where a person manipulates buttons only with difficulty cannot sensibly be answered by the riposte: ‘Well, she can still write a letter without difficulty…’.”

Ahmed v Metroline Ltd (bailii.org), EAT, 2011
The EAT reaffirmed that the tribunal must focus upon what the claimant could not do, saying: “I accept therefore that, as a matter of principle, it will be impermissible for a Tribunal to seek to weigh what a Claimant can do against what s/he cannot do, and then determine whether s/he has a disability by weighing those matters in the balance.”

However there were cases, such as the present one, where findings of fact as to what a claimant actually can do may throw significant light on a disputed question of fact as to what he cannot do. So in the present case the tribunal had not fallen into error.

A person who stammers tends to have difficulty with work phone calls. This should not be balanced against anything the person has little problem with, such as chatting with friends or colleagues.

(In any event, even in chatting there may well be dysfluencies or avoidances etc which are a more than minor or trivial effect.)

There are more examples of cases on this below: Technical note: More cases on focusing on what the person has difficulty with.

Effect on the individual – highly able people

The tribunal should look at the effect of the impairment on that individual, comparing that person’s actual ability with how the person would be without the impairment. The individual’s abilities need not be so adversely affected as to take the person below the average level of ability exhibited in the population as a whole, nor indeed amongst work colleagues.

Accordingly a person’s impairment may have a “substantial” effect even though the person’s abilities are much greater than most people’s – because the effect of the impairment is more than minor or trivial compared with how that individual would be without the impairment. As the Paterson case below points out, this is particularly important for – though not limited to – highly able people such as a senior police officer, or someone with the skills to be a highly successful accountant.

Paterson v Commissioner of Police of the Metropolis, EAT, 2007
The claimant had dyslexia. An employment tribunal found that the claimant was disadvantaged when compared to his non-dyslexic colleagues in a high-pressure exam for promotion, but was not disadvantaged with reference to the “ordinary average norm of the population as a whole”. The employment tribunal therefore held he did not have a “disability”. He had produced high quality written work as a chief inspector.

On appeal, the EAT held that the employment tribunal had applied the wrong test. The tribunal needed to consider how the claimant in fact carries out the activity compared with how he would do it if not suffering the impairment.

Here the tribunal had accepted that he was disadvantaged in the exam such that he should be given 25% extra time. This must mean he was disabled.

Note: This approach of comparing how the claimant is with the impairment and how that individual would be without it has been reaffirmed by the EAT in numerous other cases, including Aderemi v London and South Eastern Railway, 2012, Banaszczyk v Booker, 2016, Igweike v TSB Bank, 2019, and Elliot v Dorset County Council, 2021. (On what the EAT in Paterson said about considering the kind of difference one might expect taking a cross-section of the population, see below Paterson statement on normal differences.)

A non-employment example, of a pupil at a grammar school:

PP v Trustees of Leicester Grammar School, Upper Tribunal, 2014
A grammar school pupil was claiming reasonable adjustments for dyslexia and visual stress. In a selective high-performing school, she performed around average in recent mock exams, without extra time. The Upper Tribunal held that the lower tribunal should not have concluded from this that she had no disability. Rather, the comparison should be between what she could do, and what she would be able to do without the impairment.

So a disabled person may have much greater abilities than the average norm of the population, or even greater abilities than colleagues at work or at school. Doubtless most people could not produce the standard of paperwork produced by the claimant in Paterson. His dyslexia was still a disability because it had a substantial effect if one compared his abilities with dyslexia to how his abilities would be without it.

Similarly, with stammering, it seems that one looks at the difference between the claimant’s abilities with the stammer compared with how they would be without it. The issue is whether that effect is substantial, ie more than minor or trivial – in normal day-to-day activities, which includes most workplace activities.

It does not matter whether the individual’s abilities are above absolute levels of ability in the population as a whole, or in a particular section of the population. However, in considering whether the relative difference in that individual’s abilities (with versus without the impairment) is more than minor or trivial, if that is not clear, it may be relevant to consider whether the relative difference falls within normal fluctuation in a certain group of people: see Igweike v TSB Bank, below, 2019.

Hiding the stammer and avoidance, speech techniques etc

The stammer may have a very substantial effect even if outwardly you are speaking fluently. It is important to bring evidence of this if relevant, if possible backed by an expert report.

On avoidance/concealment see Hiding your stammer and Failure to modify behaviour.

On speech techniques, electronic devices etc see Discounting speech techniques etc.

Going beyond normal differences between people: outline

Like previous guidance, the 2011 Guidance says the requirement that an adverse effect on normal day-to-day activities be “substantial” reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. (Quotes are below in a Technical note Guidance on “normal differences”.)

In summary, it can be argued that common effects of stammering (even if mild) do indeed go beyond normal differences between people, and that if it is unclear whether the effect of the stammer is “more than minor or trivial”, then that should at least be a factor pointing to the effect being more than minor or trivial, ie substantial.

“Normal differences”: Case law

The EqA says the courts should take the 2011 Guidance into account where relevant. However case law (below in Technical note Cases on “normal differences”) indicates that:

  • Tribunals should start from the statutory wording of whether the effect is more than “minor or trivial”. The 2011 Guidance, including the “normal differences” statement, should not be seen as a statute. The Guidance is most likely to be useful where the answer under the statutory wording is unclear.
  • “People” in the Guidance is more limited than the population as a whole. See below in Technical note What part of the population?
  • The question is not whether in absolute terms the claimant’s ability is within a normal range of differences. As discussed above (Effect on the individual), a tribunal looks at the effect of the impairment on the individual compared with how that individual would be without the impairment. The “minor and trivial” test – where the “normal differences” guidance may be relevant – applies to that relative effect on the individual.

More detail generally below: Technical note: Going beyond normal differences between people.

“Normal differences”: Applying the guidance to stammering

In the light of this, it seems that if it is unclear whether the adverse effect on ability to carry out normal day-to-day activities is “more than minor or trivial”, the fact that the adverse effect goes beyond normal differences in ability among people is at least a factor pointing to the effect being more than minor or trivial. Indeed it may well be an important factor.

It can be argued that common effects of stammering (even if mild), for example blocking, or switching words and phrases to avoid stammering, are indeed something going beyond normal differences which exist between people. This is so even where a listener perceives them as minor. Also it is so whatever part of the – non-disabled – population one takes as a comparison (What part of the population?). For example:

  • people with a stammer sometimes (or often) find that their words do not come out readily, even though they know what they want to say, whereas people without an impairment do not have this
  • a person without a speech impairment does not switch simple words or phrases, or insert fillers (like “well”, “you see”) because the words they really want to say will not come out fluently.

Anyone may have dysfluencies sometimes, but not eg struggling to get a word out, or switching simple words to what they can say more easily.

A person has a mild stammer but sometimes blocks for a second or so when they cannot get a word out. This is on top of the normal dysfluencies that anyone has. One argument in favour of this being “more than minor or trivial”, and therefore “substantial”, is that it goes beyond normal differences in the population.

A person with a stammer sometimes changes what they say to something that will come out more easily. Perhaps they do this more often in a particular kind of conversation, for example at work. Especially in activities where they do this more frequently, one argument in favour of it being “more than minor or trivial”, and therefore “substantial”, is that it goes beyond normal differences in the population.

So far as I know, tribunals have not considered this argument as regards stammering.

Guidance: clarity, pace and rhythm

As well as the example above, specifically on speech the 2011 Guidance says:

Some impairments may have an adverse impact on the ability of a person to carry out normal day-to-day communication activities. For example, they may adversely affect whether a person is able to speak clearly at a normal pace and rhythm … Account should be taken of how such factors can have an adverse effect on normal day-to-day activities.
2011 Guidance, para D17

So the Guidance particularly mentions:

It is guidance, so it does not mean these are the only things a tribunal should take into account.

Time taken

Generally rather than just with regard to speech, para B2 of the 2011 Guidance says that in assessing whether the effect is substantial, the time taken by a person with an impairment to carry out a normal day-to-day activity should be considered. Para B2 says it should be compared with the time it might take a person who did not have the impairment.

In Banaszczyk v Booker, 2016, the EAT agreed that para B2 is plainly correct in law, the time taken to perform an activity must be considered when deciding whether there is a substantial effect. The case is also helpful in holding that an employer’s requirement that an activity (lifting cases weighing up to 25kg) be done at a particular speed did not prejudice its being a “normal day-to-day activity”.

The Guidance is not saying that you only have a disability if you take longer to say things. For example a person might speak with a broken rhythm and arguably have a “disability”, but get as many words out within a given time as some “fluent” people.

Technical note: Generally, the courts have held the disabled person’s abilities must be compared with how that person would be without the impairment, rather than non-disabled people generally: above Effect on the individual. However in the context of speech, a comparison with the speed of speech of non-disabled people generally seems reasonable, at least in most cases, since being able to speak particularly quickly is not usually a valued ability.

Clarity

Although this is a factor, note that in C v Menzies Aviation, below, the Employment Tribunal held that the stammer was a disability even though, on the evidence, the claimant could express himself clearly.

Reaction of listeners

Unlike many abilities, such as walking, or cooking a meal, speech very much involves an interaction between two or more people. The effect of stammering can go well beyond conveying the meaning of the words spoken. The other person may be less willing to listen. Stammering can disrupt a listener’s expectations, interrupting the normal flow of conversation. Many people, including employers, tend to have negative perceptions of people who stammer (eg Consequences of stammering (stamma.org)). Questions to think about could include whether the stammer affects:

  • willingness of others to listen to the person (including not interrupting too much),
  • ability to speak in a way that creates positive relationships with others,
  • ability to speak in a way that instils trust and confidence,
  • ability to persuade,
  • ability to present the image that a company/business wants.

If the stammer does have a more than minor or trivial effect on any of these (particularly so far as they are relevant in the job), it might be argued that it has a substantial effect on normal day-to-day activities, or that this is an important factor. The comparison should be with how that individual’s abilities would be without the stammer, rather than some population or co-worker average: above Effect on the individual.

Quite rightly, a tribunal has been willing to take into account that people with whom the person who stammers is speaking may lack patience or good listening skills:

C v Menzies Aviation, Employment Tribunal, 2021
A report from a Senior Specialist Speech and Lanaguge Therapist had said: “… These dysfluencies will have a significant effect on verbal communication in day-to-day activities, especially with people who lack patience or good listening skills. The stammer did not prevent [the claimant] from expressing himself eloquently and clearly.”

The employer’s lawyer seized on this last sentence from the report, and also argued that what the report described was no more than minor or trivial. The tribunal said it would be incorrect to focus on that one sentence in the report, to the exclusion of everything else. That sentence did not sit easily with the previous sentences (or the rest of the report), when read in isolation. However, said the EAT:

“11. … it is clear that while – ultimately – the Claimant may be able to express himself clearly, his communication is marked by his stammer and framed by the reactions of his audience, with the consequent and significant impact upon him and his day-to-day activities.

“12. In the Tribunal’s view, the Claimant has clearly demonstrated an impact that was much more than trivial, as described in his impact statement. Therefore, the Tribunal concluded that the Claimant was disabled by reasons of his stammer at the material time.”

Accordingly his stammer was a disability within the EqA.

B v Ceredigion County Council, Employment Tribunal, No. 1604140/12
The tribunal found that his stammer adversely affected his ability to carry out normal day-to-day communication, as the people with whom he was seeking to communicate could disengage.
Note: I haven’t seen the tribunal decision, so have very little information on this case. However here too the tribunal seems to have taken into account the reaction of listeners.

Body movements etc

Adverse reactions (above) of listeners, which should be relevant as just discussed, may be exacerbated by other actions and movements of the person who stammers, related to the stammer. These could include looking away, blinking, grimacing one’s face, jerking one’s head or clenching one’s fists.

Substantial effect of disability may sometimes harm discrimination claim

This will depend on the particular case. However a claimant will want to consider whether arguments that the stammer has such and such an effect (so as to be a disability) may make it easier for the employer to defend the discrimination claim generally. In particular, it may be easier for an employer to argue that turning the person down for the job was justified, ie a proportionate means of achieving a legitimate aim (s.15 EqA), if the stammer had more serious effects. Some ways to counter this argument might be, depending on the facts:

  • if reasonable adjustments could compensate for the disadvantage, or
  • if it can be argued that the employer should not be allowed to discriminate because of negative social attitudes towards stammering.
  • Also, a reasonable adjustments claim may be less likely to be prejudiced by the stammer having more substantial effects, always depending on the particular facts though.

An employer may also have difficulty in what arguments to make. If the employer argues that the stammer has only a minor or trivial effect, it may have more difficulty arguing that it was justified in not employing someone for a reason related to the stammer. Cf below Effect in job interview.

Further guidance on what to take into account

Specifically on speech, see above Guidance: clarity, pace and rhythm. The following are some other things to be taken into account, mostly from the 2011 Guidance. It is guidance, so it does not mean these are the only things a tribunal should take into account.

Way in which activity carried out

Paragraph B3 of the 2011 Guidance says that another factor is the way in which a person with an impairment carries out the activity, compared with the way the person might be expected to carry it out if he did not have the impairment.

Failure to modify behaviour?

Para B7 of the 2011 Guidance says that in deciding whether someone has a disability, the tribunal should take into account how far the person can reasonably be expected to modify their behaviour to reduce the effect of the impairment. However the courts have clarified that this should not be read as a stand-alone statement. In particular, para B9 goes on to say that negative effects of avoidance strategies should be taken into account as contributing towards there being a substantial effect. See Failure to modify behaviour.

See also Hiding your stammer and Discounting speech techniques etc.

Cumulative effects of an impairment

An impairment may not have a substantial effect in isolation. However para B4-5 of the 2011 Guidance say that its effects on more than one activity, taken together, could result in an overall substantial adverse effect. For example a person with breathing difficulties could experience minor effects on ability to carry out a number of activities such as getting washed and dressed, going for a walk and travelling on public transport, but taken together the cumulative result would amount to a substantial adverse effect (para B5).

A person has a stammer which is mild but may appear across a range of speech situations, eg shopping, phone calls. Even if the effect in just one activity were not substantial (it may be substantial anyway, eg as going beyond normal differences between people), the range of activities in which it appears should help an argument that the stammer is a disability.

More than one impairment

If a person has more than one impairment (eg stammering plus something else), tribunals should consider whether the impairments together have a substantial effect overall. The example in para B6 of the 2011 Guidance is interesting in that it uses a “slight” effect on speech as one of the two impairments:

“A person has mild learning disability. This means that his assimilation of information is slightly slower than that of somebody without the impairment. He also has a mild speech impairment that slightly affects his ability to form certain words. Neither impairment on its own has a substantial adverse effect, but the effects of the impairments taken together have a substantial adverse effect on his ability to converse.”
Para B6 of 2011 Guidance

The approach to be applied if there are two impairments was considered in:

Ginn v Tesco Stores (bailii.org), EAT, 2005
The EAT held that on the facts found by the employment tribunal, the claimant’s vertigo was a disability within the EqA, considered by itself.

Was her rhinitis also a disability? The EAT said the “correct approach to assessing the effect of more than one impairment” is to “add up the component parts and see whether it amounts to more than individual parts taken separately” (§21). However the two conditions did not need to be related or to interact with each other, or to affect the same part of the body (§18-19).

A case applying the Ginn decision was Mefful below. In both cases, on the findings of the tribunal only one of the two impairments was a disability within the EqA. The claimant was therefore disabled anyway, but whether the second impairment was a disability could be relevant to whether a discrimination claim related to that second impairment could succeed – for example a claim for reasonable adjustments in relation to the rhinitis, or unfavourable treatment because of something arising from it.

Mefful v Merton & Lambeth Citizens Advice Bureau (bailii.org), EAT, 2016
The employment tribunal (reconsidering the case after a previous appeal to the EAT) held – bearing in mind the decision in Ginn – that the claimant’s shoulder impairment was a disability, but that his hearing/tinnitus was not, either on its own or combined with the shoulder.

The claimant argued that the combined shoulder pain plus the tinnitus affected his ability to sleep; the pain from his shoulder would cause him to wake up in the night, and the tinnitus prevented him from going back to sleep. It seems to have been accepted that this combined effect should be considered by the tribunal. However, in a second appeal, the EAT held that on the evidence the tribunal had been entitled to reach the decision it did.

If a person who stammers also has social anxiety disorder, the cumulative effect seems likely to be taken into account.
Note: Even where avoidance of social situations does not amount to a mental health disorder, it can still be taken into account. See Hiding the stammer.

Two other cases combining cumulative effects of impairments, to find that someone was disabled, are Walker v Sita Information, EAT, 2013 and Ministry of Defence v Hay, EAT, 2008: see “Physical or mental impairment”>Some guidance and cases.

Variability – tiredness, stress, environment etc

The 2011 Guidance acknowledges that disabilities need not occur all the time to be within the EqA. Environmental conditions may increase (or reduce) the effect of an impairment, and those effects are relevant.

B11. Environmental conditions may exacerbate or lessen the effect of an impairment. Factors such as temperature, humidity, lighting, the time of day or night, how tired the person is, or how much stress he or she is under, may have an impact on the effects. When assessing whether adverse effects of an impairment are substantial, the extent to which such environmental factors, individually or cumulatively, are likely to have an impact on the effects should, therefore, also be considered. The fact that an impairment may have a less substantial effect in certain environments does not necessarily prevent it having an overall substantial adverse effect on day-to-day activities…
2011 Guidance

For example, effects of a stammer which are more severe because the person is stressed or tired will be taken into account.

See too Normal day-to-day activities>Unusual environmental factors can be taken into account, which includes further stammering examples and the Cruikshank case.

Another example of environmental conditions being taken into account is at para D20 of the 2011 Guidance. In that example, a woman with tinnitus has particular difficulty hearing and responding to a supermarket checkout assistant if two people behind her in the queue are holding a conversation at the same time. A person who stammers may also find speech more difficult if others are talking around them.

At work

Similarly, environmental conditions at work can be taken into account towards there being a substantial adverse effect. For some work examples on stammering and environment, see Normal day-to-day activities>At work: Some examples relevant to stammering.

There is a case (Cruickshank v VAW Motorcast) saying that even unusual environmental factors can be taken into account.

Unexplained variations

A stammer may become more severe for no apparent reason. A person may be having a “good day” and then suddenly have a severe block. Clearly this should also be taken into account.

Duration of disability?

This is not a factor mentioned in the 2011 Guidance in deciding whether the effect is “substantial”, but it has some authority in case law at Court of Appeal level:

Cunningham v Ballylaw Foods Ltd, Northern Ireland Court of Appeal, [2007] NICA 7
The court said the substantiality of an impairment is influenced by the time it is likely to last. So an impairment is more likely to have a “substantial” effect if it is long term.

This might help in arguing that a stammer (which is often lifelong) has a substantial effect and is thus a disability, even if it is fairly mild. However I don’t recall seeing this argument raised, nor Cunningham cited on this point, in any other cases.

The duration of the disability is in any event relevant to the requirement that the substantial effect must be “long-term”: see Stammering starting in adulthood>’Long-term’.

Effect in job interview

A job interview may well be a “normal day-to-day activity”, in the context of an employment claim, so that one can look at whether the stammer has a more than minor or trivial effect in interviews: see ‘Normal day-to-day activities’>Recruitment and promotion. (The claimant may need to set out for the tribunal the legal argument why a job interview is a normal day-to-day activity. A tribunal held that an interview was not a normal day-to-day activity in M v Manchester Rusk Co, 2023, but legal arguments on this do not seem to have been put to the tribunal. )

So did the stammer have a “more than minor or trivial” effect in a job interview with the employer? Or does it have such an effect in job interviews generally? For example the interviewee who stammers may not have been able to say all they wanted: Examples of reasonable adjustments: Recruitment>Oral interview: Limited responses. What about effects of the stammer on how the person came across to the interviewers: above Reaction of listeners?

Even without seeing the job interview as a “normal day-to-day activity”, if interviewers felt that the stammer – including effects on relevant abilities – made the person less desirable as an employee, that should surely be helpful in arguing that the effect on ability to carry out the relevant work activities was more than minor or trivial – before reasonable adjustments, which should presumably be discounted. Work activities are normally seen as normal day-to-day activities: ‘Normal day-to-day activities’>At work.

For similar reasons, receiving lower scores in the interview or other assessments, for reasons arising from the stammer, might be argued to be evidence of a more than minor or trivial effect.

See above though Substantial effect of disability may harm discrimination claim?

May be an excellent communicator

A person who stammers may feel that they are an excellent communicator, just that they do so with a stammer and may need a bit longer to say things. It can be argued that the stammer may still be a disability within the Equality Act.

In C v Menzies Aviation, above, 2021, the tribunal said a statement in a speech therapist’s report that the stammer “did not prevent [the claimant] from expressing himself eloquently and clearly” did not sit easily with other statements in the report, for example that his dysfluencies would have a significant effect on verbal communication in day-to-day activities, especially with people who lack patience or good listening skills.

It is probably rather a truism among many in the “stammering community” (people who go to stammering-related events, and/or discuss stammering online), including many speech and language therapists dealing with stammering, that it is very possible to have great communication skills without being fluent. For some examples see Excellent communication skills.

Many employment tribunal judges may perhaps be more sceptical, as to how far dysfluency is consistent with excellent communication skills. In any event though, at least if there is significant dysfluency – and/or significant hidden effects – I think it can be persuasively argued that the person has a disability even if are normally able to communicate in a way which listeners find engaging, and where listeners do not normally mind the dysfluencies. Some arguments for this (there may well be more) are:

  • The way they communicate – their dysfluency – goes beyond normal differences (above) between people.
  • Linked to that, there are likely to be some listeners who do not give the person time to speak or have other negative reactions: above Reaction of listeners.
  • The 2011 guidance specifically says that ability to speak “clearly at a normal pace and rhythm” should be taken into account, so eg rhythm is relevant: above Guidance: clarity, pace and rhythm.
  • Also, of course, there are likely to be situations or periods of time when the dysfluency gets more severe.

Note also that a person who stammers may be thought to have excellent communication skills through hiding the stammer, for example avoiding words, circumlocuting. However, doing this may well mean the person is not communicating as well as they could do, because the person cannot say what they really want to. Speech and language therapy will tend to encourge a person away from avoidance.

Cases

Where the line is drawn on what is “substantial” as regards stammering will be a matter for the tribunals.

Where there has been a dispute on whether the stammer is a disability, there has been a good record of claimants succeeding on the issue: see Cases on whether stammer is a ‘disability’. However it is important to bring sufficient evidence (Proving disability: impact statements and expert reports) – arguably failure to do so is the main reason why tribunals have sometimes not held that a stammer was a disability.

In practice, there is often no dispute that the stammer has a substantial effect, so the tribunal does not have to decide the issue. See Cases on stammering.

Technical note: Going beyond normal differences between people

Summary on “normal differences”

Like previous statutory Guidance since 1996, the 2011 Guidance says the requirement that an adverse effect on normal day-to-day activities be “substantial” reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people: : below Guidance on “normal differences”.

In the light of this and case law, it seems that if it is unclear whether the adverse effect on ability to carry out normal day-to-day activities is “more than minor or trivial” (the statutory test), the fact that the adverse effect goes beyond normal differences in ability among similar non-disabled people is at least a factor pointing to the effect being more than minor or trivial. Indeed it may well be an important factor. Below Cases on “normal differences”.

I think this is helpful for stammering. It can be argued that many typical effects of a stammer, such as blocking or switching words and phrases (even if hidden), do indeed go beyond normal differences which exist between people. For example struggling to get a word out is not the kind of natural dysfluency that a non-disabled person has. See above “Normal differences”: Applying the guidance to stammering.

Remember that one looks at the effect of the impairment on the individual compared with how the individual would be without the impairment, and applies the “minor or trivial” test to that relative effect on the individual. It is not a question of whether, in absolute terms, the person’s speech ability is within the normal range of differences between people. See above Effect on the individual.

Guidance on “normal differences”

The 2011 Guidance describes what is “substantial” as follows:

“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…”
2011 Guidance, para B1

The 2011 Guidance uses similar words in its major example of a stammer which, says the Guidance, meets the test of having a “substantial” effect:

“…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….”
2011 Guidance, para D17. For the full example see above Stammering example in statutory guidance.

Courts have also cited the similar wording in the Employment Code of Practice:

“A substantial adverse effect is something which is more than a minor or trivial effect. The requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people.”
Para 8, Appendix 1 of the EqA Employment Code of Practice. Para 7 of the Appendix to the EqA Services Code of Practice has similar wording.

Cases on “normal differences”

The EqA says the courts should take the 2011 Guidance into account where relevant: Legal effect of statutory guidance and codes.

However there are three main ways in which the courts have qualified or clarified the implication in the Guidance that substantial effects are those “going beyond the normal differences in ability which may exist among people”:

  1. First and foremost, the EAT emphasised in Elliot v Dorset County Council, above, 2021, that the tribunal should start from the statutory wording of whether the effect is more than “minor or trivial”. The Guidance and Code (including the “normal differences” statement) should not be read as statutes. They are most likely to be useful where the answer under the statutory wording is unclear. The EAT said: “If the adverse effect has a more than minor or trivial effect on the ability of a person to carry out day-to-day activities the definition is met; no consideration of the abilities of some group of people, or section of the population, can alter that determination.” The EAT therefore held that the employment tribunal should not have dismissed a claim partly on the ground that “[m]any people find public speaking and socialising difficult and many people adjust their behaviour in order to manage these occasions”.
  2. “People” in the guidance is more limited than the population as a whole. See below What part of the population?
  3. Paterson v Commissioner of Police of the Metropolis, 2007, and numerous other cases have stressed that one looks at the effect of the impairment on the individual compared with how that individual would be without the impairment. See above Effect on the individual. One applies the “minor and trivial” test (where the “normal differences” issue can be relevant) to that relative effect on the individual. So it is not a question of whether in absolute terms the claimant’s ability is within the normal range of differences.

What part of the population?

The 2011 guidance (above) says the requirement that the effect 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”. So far as this statement in the guidance does apply (subject to the statutory “minor or trivial” test), cases – below – indicate that it means only a limited cross-section of non-disabled people, perhaps sometimes (as in Igweike below) as limited as fellow workers in similar jobs.

Whichever way the cross-section of non-disabled people is limited, I still think the “normal differences” guidance should be helpful for stammering (above). Compared with any group of non-disabled people, there are differences in the speech of people who stammer, even if the differences are sometimes hidden, such as switching what one says.

Elliot v Dorset County Council, above, EAT, 2021
The EAT said that there are differences between non-disabled people that are much more than minor or trivial, particularly if “people” includes the whole population of the UK.

The EAT suggested that “people” here in the 2011 Guidance should be understood as those who are, very broadly speaking, in a similar section of the population to the claimant, other than not being disabled (§38), or a rough and ready cross-section of the population taken at approximately a claimant’s level (§46).

However, as discussed above, the EAT in Elliot stressed that one should start from the statutory “more than minor or trivial” test. The 2011 Guidance is most likely to be helpful if it is unclear whether the statutory test is met.

Igweike v TSB Bank, EAT, 2019
The claimant argued that it was discriminatory for his employer not to award him a bonus, as his reduced performance was due to a mental health condition.

The EAT affirmed that the tribunal should look at whether the effect on that individual’s abilities was substantial, comparing him with how he would be without the disability (above Effect on the individual). Therefore the tribunal should not compare his (absolute) level of skills with that of others, including fellow workers.

However considering fellow workers in the same or similar jobs might help the tribunal to assess and calibrate the significance of the impact of the impairment on the individual claimant in relative, not absolute, terms. If the disability reduced his performance by, say, just a few percentage points, the tribunal might be assisted in considering whether that was a “substantial” reduction, by looking at the wider picture of whether a reduction of that modest level was something that would generally be regarded as significant, if exhibited by someone else who was subject to the same kind of assessment; or whether it would fall within the degree of fluctuation in ordinary performance normally found among those who did not have the impairment.

Paterson statement on normal differences

In the light of the comments in Igweike and Elliot (above What part of the population?), one should approach with caution the last sentence of the headnote in Paterson v Commissioner of Police of the Metropolis, 2007, approved by EAT in Aderemi v London and South Eastern Railway, 2012. The headnote read: “The only proper approach to establishing whether the disadvantage was substantial is to [assess] the effect of the disability on the individual. This involves considering how he in fact carries out the activity compared with how he would do it if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are substantial.”

The Upper Tribunal in an education case doubted the correctness of what Paterson said about looking at a cross-section of the population: PP v Trustees of Leicester Grammar School>Confusion on continuing relevance of population norms, 2014. The EAT in Elliot, above did not disagree with the statement in Paterson, provided it was understood as a limited section of the population similar to the claimant: above What part of the population? However the EAT in Elliot also said one should start from the statutory test of whether the effect is “more than minor or trivial”. At §51 the EAT in Elliot pointed out that when Paterson was decided, this “more than minor or trivial” test was not in the statute, and said that any inconsistency must now be resolved in favour of the statute.

Technical note: More cases on focusing on what the person has difficulty with

As well as the cases in Focus on what the person has difficulty with above, further cases affirming the principle include:

Elliot v Dorset County Council, EAT, 2021
“22. The fact that a person can carry out such activities does not mean that his ability to carry them out has not been impaired. The focus of the test is on the things that the applicant either cannot do, or can only do with difficulty, rather than on the things that the person can do.

23. It is wrong to conduct an exercise balancing what the person cannot do against the things that s/he can do…”, citing Ahmed v Metroline, above, 2011.

Aderemi v London and Southeastern Railway, EAT, 2012
“14. It is clear first from the definition in section 6(1)(b) of the Equality Act 2010, that what a Tribunal has to consider is on [sic] adverse effect, and that it is an adverse effect not upon his carrying out normal day-to-day activities but upon his ability to do so. Because the effect is adverse, the focus of a Tribunal must necessarily be upon that which a Claimant maintains he cannot do as a result of his physical or mental impairment…”

Leonard v Southern Derbyshire Chamber of Commerce (bailii.org), EAT, 2001
“Whilst it is essential that a Tribunal considers matters in the round and makes an overall assessment of whether the adverse effect of an impairment on an activity or a capacity is substantial, it has to bear in mind that it must concentrate on what the Applicant cannot do or can only do with difficulty rather than on the things that they can do. This focus of the Act avoids the danger of a Tribunal concluding that as there are still many things that an applicant can do the adverse effect cannot be substantial.”

Goodwin v Patent Office, EAT, 1999
“The focus of attention required by the [Disability Discrimination] Act is on the things that the applicant either cannot do or can only do with difficulty, rather than on the things that the person can do. ….”
This was approved by the Court of Appeal in London Borough of Lewisham v Malcolm (bailii.org), 2007, at para 128-131, albeit the Court of Appeal’s decision was overturned by the House of Lords on other grounds.

Technical note: Effect of European Convention on Human Rights?

See Disability under Article 14 European Convention>Relevance of Article 14 to whether “disability” under the Equality Act?

20th anniversary of stammeringlaw, 1999-2019