The main requirement for a stammer to be a ‘disability’ within Equality Act 2010 is that it must have a substantial adverse effect on the person’s ability to carry out normal day-to-day activities. This page looks at what degree of actual (overt) stammering is a ‘substantial effect’. Less obvious effects can also contribute, such as Hiding the stammer.
Does a stammer have a ‘substantial’ effect on ability to carry out normal day-to-day activities, so as to be a ‘disability’ within the Equality Act?
This will depend on the particular person’s stammer, but very often the answer should be ‘yes’. Substantial means only ‘more than minor or trivial’.
See below the Stammering example in 2011 statutory guidance to get an orientation on what should be covered.
The focus is on what you can’t do or have difficulty with. The employer can’t say, for example, that problems with phone calls and in shops isn’t a substantial effect because you can do some other activity fine. See below Focusing on what the person has difficulty with. (In any event, even in ‘OK’ situations’ dysfluency may well be more than minor or trivial.)
In deciding whether the effect is ‘substantial’, a key point is whether it goes beyond the kind of difference one might expect in a cross section of the population. Since the general population do not have difficulty getting their words out, it could be argued that it is easy for a stammer to meet the test. See below Going beyond normal differences between people.
It seems a stammer can be a ‘disability’ even if the person is an excellent communicator. Ability to ‘communicate’ is different from ability to ‘speak’ in a normal way. See below May be an excellent communicator.
On separate pages: Hiding a stammer, long-term variation, therapy, and perceived effects
This page focuses on effects which are evident to other people (‘overt’ effects). However, steps taken to hide the stammer – for example saying less, avoiding situations, switching words – can also be important effects of a stammer, and should be relevant. There is a separate page on this: Hiding the stammer.
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 – see Longer-term variations.
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.
Index to the rest of this page:
- Stammering example in 2011 statutory guidance
- Meaning of ‘substantial – low threshhold
- Focusing on what the person has difficulty with
- Going beyond normal differences between people
- Effect on the individual
- May be an excellent communicator
- Guidance on what to take into account
- Variability – tiredness, stress, environment etc
- Check how much you actually stammer?
- Note on Disability Discrimination Act 1995 (DDA)
- Is any stammer covered?
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 guidance. In the original, the second paragraph says “In these cases…” because there are two non-stammering examples before this one.
That is not setting out preconditions a stammer must meet to be a “disability”. It is only an example in guidance.
However, the example illustrates in a concrete way that the threshhold is a low one. 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) – but it goes beyond the normal dysfluencies that ‘fluent’ speakers would have. Normal speakers do not generally have difficulty getting their words out.
There are further comments on this example at 2011 guidance>Avoidance: Example of stammering on phone (para D17). The example applies in Great Britain, but not Northern Ireland.
“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 whether the effect is minor or trivial. If not, then it is “substantial”:
Aderemi v London and South Eastern Railway, EAT, 2012 “[Substantial] means more than minor or trivial. In other words, the 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.” Discussed at 2011 Guidance on definition of disability> No ‘spectrum’ between examples of what is and isn’t a disability.
The 2011 guidance says an important point is whether the limitation goes beyond normal differences in ability which may exist among people. It can be argued that even a mild stammer does. See below Going beyond normal differences between people.
It is important that tribunals must not look across the range of activities and balance what a person can do fine and what they cannot do or have difficulty with. The focus is on what activities the person cannot do, or has difficulty with. Some cases on this:
Goodwin v Patent Office, Employment Appeal Tribunal, 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. ….”
Commissioner of Police of the Metropolis v Ekpe, Employment Appeal Tribunal, 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), Employment Appeal Tribunal (EAT), 2011
The employment tribunal had talked about what the claimant could do, in resolving a factual dispute as to what he could and couldn’t do. The EAT (from para 46) held that this was permissible, since the facts were disputed. However, the EAT reaffirmed that the tribunal must focus upon what he could not do. “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.”
A more recent case re-asserting this principle under the Equality Act 2010:
Aderemi v London and Southeastern Railway, Employment Appeal Tribunal, 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 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…”
A person who stammers tends to find work phone calls difficult. This should not be balanced against anything the person has little problem with, such as chatting to friends or colleagues.
In any event, even in chatting there may well be dysfluencies which are a more than minor or trivial effect, beyond the normal differences between people.
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. Whether the effect goes beyond normal differences in ability which may exist among people has therefore been seen as a factor – and sometimes the key factor (as in Paterson) – in deciding whether the effect is “substantial”. See below Guidance and cases on the ‘normal differences’ test.
I think this is very helpful for stammering. It can be argued that effects of stammering, such as blocking or switching words and phrases (even if hidden), are indeed something which goes 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-stammering person has. See below Applying the ‘normal differences’ test to stammering.
A wrinkle is that cases have said one looks at the effect of the impairment on the individual compared with how he or she would be without the impairment, and applies the ‘normal differences’ test to that relative effect on the individual. So it is not a question of whether in absolute terms the person’s speech ability is within the normal range of differences. It seems to me unclear how this is supposed to work, but I don’t think it affects the position on stammering. See below Effect on the individual.
Applying the ‘normal differences’ test to stammering
It can be argued that common effects stammering, 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. For example:
- people with a stammer sometimes (or often) find 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 they can’t say fluently what they really want.
Anyone may have dysfluencies sometimes, but not eg struggling to get a word out, or switching words to what they can say more easily.
A person has a mild stammer but sometimes blocks for a second or so when s/he cannot get a word out. This is on top of the normal dysfluencies that anyone has. It can be argued this is ‘substantial’ since it goes beyond normal differences in the population.
So far as I know, tribunals have not considered this argument as regards stammering, and it remains to be seen what approach they take.
Accordingly there is a possible argument that any effects of a stammer are ‘substantial’ (see also below Is every stammer a disability?).
Guidance and cases setting out the ‘normal differences’ test
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 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. Other Codes of Practice may well include similar wording.
This approach has been adopted in various Employment Appeal Tribunal EAT) decisions:
Aderemi v London and South Eastern Railway, EAT, 2012
The EAT in Aderemi quoted the headnote of the Paterson case which, it said, rightly reads: “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.”
For more on this in the Paterson case, see Paterson: EAT: Whether effect is ‘substantial’ – comparison with population at large.
A more recent case seeing ‘normal differences’ as a relevant factor is Igweike v TSB Bank, 2019. There the EAT there focused on normal differences in fellow workers doing similar tasks rather than a cross-section of the general population.
Effect on the individual
The tribunal need not find that the individual’s performance is so badly affected that it takes him below the range of absolute levels of performance exhibited in the population as a whole, or indeed amongst other colleagues. The tribunal should look at the effect of the impairment on that individual, comparing his actual ability with how he would be without the impairment.
Accordingly a person’s impairment may have a substantial effect even though his abilities are much greater than most people’s – because the effect is more than minor or trivial compared with how that individual would be otherwise. As the Paterson case below points out, this is particularly important for 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, Employment Appeal Tribunal (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 that he was not disadvantaged with reference to the “ordinary average norm of the population as a whole”. The tribunal therefore thought he did not have a “disability”. He had produced high quality written work as a chief inspector.
The EAT said the employment tribunal had applied the wrong test. It needed to consider how the claimant 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.
So a disabled person may have greater abilities than the average norm of the population, even with a disability. Doubtless most people could not produce the standard of paperwork produced by the claimant in Paterson. But his dyslexia was still a disability because it had a substantial effect comparing his abilities with dyslexia to how they would be without it.
Similarly, with stammering, it seems that one looks at the difference between how the claimant is able to speak with the stammer compared with how they would be able to speak without it. That is the relevant effect (as regards speech). The issue is whether that effect (with any other effect of the stammer on other normal day-to-day activities) is substantial, ie more than minor or trivial.
It does not matter whether the individual’s abilities are above absolute levels of ability in the population as a whole. However as to whether the relative difference in the individual’s abilities (with versus how they would be without the impairment) is more than minor or trivial, the EAT said it is important whether it is the kind of normal difference one might expect taking a cross-section of the population (above Going beyond normal differences between people). In some cases at least, it is not easy to see how tribunals should decide whether this impact of the impairment on that individual goes beyond normal differences in a cross-section of the population. The EAT considered the issue to some extent in Igweike v TSB Bank, 2019. There the EAT actually focused on normal differences in fellow workers doing a similar task, rather than the general population. I find the outcome of the discussion in Igweike unclear. However I don’t think this lack of clarity affects the position on stammering: see Igweike v TSB Bank>My comments.
May be an excellent communicator
A person who stammers may feel they are an excellent communicator, just they do so with a stammer and may need a bit longer to say things. Is that a problem if one is arguing that the stammer is a disability? Most likely not – the stammer may still be disability within the Equality Act.
A person who stammers may have excellent communication skills. Ability to ‘communicate’ is different from ability to ‘speak’ in a normal way. There can be a substantial effect on the person’s ability to speak normally, with a normal rythmn and pace, even though the person has excellent communication skills.
Is it sufficient that ability to speak in a normal way is impaired, as opposed to ability to speak in a way that communicates well? I’m not aware of any cases directly on it, but it seems likely the answer is ‘yes’.
One argument for this is the fact that whether an impairment’s effect goes beyond normal differences is key to whether the effect is ‘substantial’ (above Going beyond normal differences between people). That being the case, it would be odd if an impairment which constrains a person to speak in a way going beyond the normal differences between people is not seen as having an effect on their ‘ability’ to speak.
Take the example of ordering in a coffee shop. A person who stammers may be able to order a coffee but they do it with a stammer (it may take longer, speech rythmn may be disrupted, there may be repetition etc). That may be the case however good the person’s communication skills are. Even so the person who stammers could argue that there is a substantial effect on ability to order the coffee, in that there is an effect going beyond the normal differences between people (see above Going beyond normal differences between people).
Further arguments that a substantial effect on someone’s ability to’speak in a normal way should in itself sufficient for there to be a ‘disability’:
- Most importantly, there is nothing in the Equality Act to say that an adverse effect on a person’s ability to speak in the way the general population do is not an adverse effect in its own right.
- The 2011 guidance specifically mentions as things to take into account ability to speak at a ‘normal pace and rythmn’ – see below Guidance on what to take into account. A person without an impairment can speak at normal pace and rythmn, whereas a stammer adversely affects the rythmn and/or pace of someone’s speech (unless the stammer is hidden).
- ‘Speech’ (not communication) was one of the ‘capacities’ listed in the former Disability Discrimination Act 1995 (DDA). Under the DDA an impairment could only be a ‘disability’ if it affected the person in respect of at least one listed ‘capacity’. This has now been repealed, but is likely to influence interpretation of the Equality Act. The repeal was in order to extend the defintion of disability, and tribunals are unlikely to want to see it as narrowing the definition.
In practice, the person who stammers may well be able to argue that, for example, they sometimes (perhaps often) take rather longer to speak than a fluent person. Quite apart from arguing that it is sufficient that one speaks differently, the person here could argue that the stammer has a more than minor or trivial effect on how long it takes them to speak.
Note: Another reason a person who stammers may be thought to have excellent communication skills is 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.
Guidance on what to take into account
This is in the 2011 Guidance. It is guidance, so it does not mean these are the only things which a tribunal should take into account.
Specifically on speech
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:
- normal pace
- normal rhythm
Paragraph 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. 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 of the 2011 guidance was 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 be done at a particular speed did not prejudice its being a ‘normal day-to-day activity’.
Note that the Guidance is not saying that you only have a disability if you take longer to say things. For example a person may speak with a broken rhythm and have a ‘disability’, but get as many words out within a given time as some ‘fluent’ people.
Way in which activity carried out
Paragraph B3 of the 2011 Guidance says 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.
An impairment may not have a substantial effect on ability to carry out a particular normal day-to-day activity in isolation. However, its effects on more than one activity, taken together, could result in an overall substantial adverse effect (para B4 of 2011 Guidance). 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 effects were not otherwise substantial (they may be substantial anyway, 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.
If a person has more than one impairment (eg stammering plus something else), one can look at whether the impairments together have a substantial effect. Para B6 of the 2011 Guidance is interesting in using 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
If a person who stammers also has social anxiety disorder, the cumulative effect would 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.
Avoidance, electronic devices, speech techniques etc
Duration of disability?
This is not in the 2011 Guidance, but has some authority in case law:
Cunningham v Ballylaw Foods Ltd, 2007, Northern Ireland Court of Appeal
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.
Variability – tiredness, stress, environment etc
The 2011 Guidance acknowledges that disabilities need not occur all the time to be within the Equality Act. 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, para B11.
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, where 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.
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 See Normal day-to-day activities>At work: Some examples relevant to stammering.
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. Doubtless this should also be taken into account.
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’.
In practice, there has often been no dispute that the stammer has a substantial effect, so the tribunal does not have to decide the issue. See Cases on stammering.
Check how much you actually stammer?
People who stammer may not realise the amount that they stammer. Also people around may have grown so used to it they don’t notice much either. Recording yourself might give you an idea of how much you actually stammer, as well as having an assessment by a speech and language therapist.
Note on Disability Discrimination Act 1995 (DDA)
This definition of ‘substantial’ – namely ‘more than minor or trivial – is now set out in the Equality Act 2010 (s.212(1) EqA). There was no definition in the previous Disability Discrimination Act 1995 (DDA). However, under the DDA, which the Equality Act has now replaced, ‘substantial’ was taken by offical guidance and the courts as meaning ‘more than minor or trivial’ (Para B1 of the 2006 Guidance, and Goodwin v Patent Office). Accordingly case law on what is ‘substantial’ under the DDA is generally likely to be followed for the Equality Act 2010.
A possible exception, in other words a case which may not be followed under Equality Act 2010, is:
Anwar v Tower Hamlets College 2010, Employment Appeal Tribunal (EAT)
This case was decided under the DDA (prior to Equality Act 2010). The EAT considered it permissible to find that an impairment did not have a ‘substantial’ effect if the effect was more than ‘trivial’ but not more than ‘minor’. The “more than minor or trivial” test, said the EAT, was not a legal definition.
From October 2010, however, that test is a legal definition under the Equality Act. It is not clear whether this case is still relevant.
Is any stammer covered?
There is a policy argument to say that the focus should be on whether there is discrimination – if a stammer is significant enough that a person is discriminated because of it then it should fall within the Equality Act. The Disability Rights Commission recommended that any impairment should be covered by the DDA regardless of level or type (see Wider definition of disability?), but that is not the law at the moment.
However even under present case law and guidance, an argument can be made that any stammer is within the Equality Act if it has some effect on fluency in normal day-to-day activities. The main argument is that in the case of a stammer this effect will inevitably be ‘more than minor or trivial’, as it will go beyond the normal differences in ability which may exist among people (above Going beyond normal differences between people). The clinical condition of stammering is something beyond the dysfluencies which occur to most people.
Where the European Convention on Human Rights applies, that gives another possible argument for any stammer to be covered.
For more on the argument, see Is every stammer a ‘disability’?
If the stammer does not go beyond the occasional dysfluencies most people have because it is being hidden or speech techniques etc are being used, it may come within the Equality Act anyway under the special rules on this – see Hiding the stammer and Therapy.