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Disability: Failure to modify behaviour

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Last updated 6th December, 2020.

This page looks at how far if at all para B7 of the 2011 Guidance might require a person who stammers to take reasonable steps to reduce the effects of his stammer.

Summary

  • 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 paragraph B9 says negative effects of avoidance strategies should also be taken into account.
  • The Guidance is not legally binding, and para B7 has been criticised so far as it applies to modifying or avoiding normal day-to-day activities.
  • Employers etc may suggest that word substitution is something people who stammer can reasonably be expected to do to reduce stammering. However it can be strongly argued that this is wrong: below Word substitution. One reason is that therapy and self-help approaches view such avoidance strategies as a negative stammering behaviour, which the person who stammers is encouraged to move away from.
  • For similar reasons avoiding difficult situations such as phone calls should not fall within para B7.
  • However avoidance strategies such as substituting words and avoiding situations should be taken into account as adverse effects of the stammer – under the guidance (below) and see separate page Hiding the stammer.
  • Speech techniques should not in any event fall within para B7 as they are likely to fall within distinct statutory provisions.

Paragraphs B7 to B10

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 his or her behaviour, for example by use of a coping or avoidance strategy”, so as to reduce or prevent effects of the impairment on normal day-to-day activities.

Para B9 says account should also be taken of where a person avoids doing things which, for example, cause social embarrassment or fatigue (or various other listed things). “It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person.” It is important to consider the things that a person cannot do, or can only do with difficulty.

Para B10 says the possibility that the strategy will break down in certain circumstances, for example under stress, must also be taking into account.

Paragraphs B7 to B10 give some examples and say more on avoidance strategies. Some of this is discussed on the rest of this page.

Some cases on para B7

Commissioner of Police of the Metropolis v Virdi, EAT, 2006
The claimant had a loss of central vision in one eye. The EAT said the tribunal should have applied the guidance similar to B7 which was then available. For example moving his head when crossing the road or when trying to recognise someone would be a coping strategy which reduced the effect of his impairment.

The EAT had considerable doubts whether taking rests after reading or using the computer for a period could properly be considered a “coping strategy”. Rather than being a way in which he coped so as to enable him to read, this simply defined the nature of the adverse impact: he cannot read for periods without a break.

Metroline Travel v Stoute (bailii.org), EAT, 2015
The claimant had Type 2 diabetes. The EAT said that having regard to para B7 of the Guidance, it was unable to accept that abstention from sugary drinks constituted a substantial adverse effect on day-to-day activities caused by Type 2 diabetes. Nor did the EAT consider that abstaining from sugary drinks was sufficient to amount to a “particular diet” which could be ignored as a treatment or correction under EqA Sch 1 para 5.
This decision is controversial. One reason is that a diabetic diet involves much more than avoiding sugary drinks. Also the EAT’s suggestion that nut allergies should not be seen as a disability ignores the great lengths to which those affected may need to go to avoid traces of nuts. See the discussion by Tamara Lewis linked below under Modifying or avoiding normal day-to-day activities?

Taylor v Ladbrokes (bailii.org), EAT, 2016
After quoting paragraphs B7 and B10 the EAT said it is important that this is guidance issued by a Minister. It is not the statutory language itself, but rather a gloss on it. The EAT stated: “… as I think the case of Boyle itself illustrates, Tribunals should start with the statutory language, consider the guidance and decide, having looked at both, what the statute means, concentrating primarily on the language of the statutory provision itself.”

General discussion of paragraphs B7-B10

The first point to make is that the 2011 Guidance is not law, as pointed out in Taylor above. The courts must take the Guidance into account in at least some circumstances, but they are not bound to follow it. It is not at all clear that para B7 is supported by the legislation or by case law. The EAT in Virdi above applied para B7, but that was before the House of Lords decision in SCA Packaging v Boyle where Baroness Hale said that in interpreting the statute the court starts “with a clean slate” In Metroline above the EAT did not discuss the Boyle case. In Taylor, citing Boyle, the EAT emphasised first and foremost the statutory language of the Equality Act itself. See further Legal effect of statutory guidance and codes.

Avoiding abnormal activities

According to an example in para B7, it would be reasonable to expect a person who has chronic back pain to avoid extreme activities such as skiing, but it would not be reasonable to expect the person to give up, or modify, more normal activities that might exacerbate the symptoms; such as shopping, or using public transport.

Yes one can see how the skiing example might perhaps be right. That is an ‘extreme’ activity which has knock-on effects on the person’s ability to do normal day-to-day activities. Arguably, if the reason you can’t go shopping (a normal day-to-day activity) is that you did your back in going skiing, despite knowing that’s the likely result, then maybe this doesn’t count as a substantial effect on normal day-to-day activities.

However, is this consistent with Kaltoft v Municipality of Billund (bailii.org), 2014? In that case, on obesity, the ECJ said that the origin of the disability does not matter. Disability “does not depend on the extent to which the person may or may not have contributed to the onset of his disability”.

Modifying or avoiding normal day-to-day activities?

Avoiding abnormal activities such as skiing, or going up the Eiffel Tower (para B8 of the Guidance) is very different from taking reasonable steps to modify or avoid normal day-to-day activities.

Perhaps the Guidance is right as regards, for example, turning one’s head to be able to see properly when crossing the road or trying to recognise someone, as in Virdi above. But the law is not necessarily as set out in the Guidance. Modifying or avoiding normal day-to-day activities are discussed by Tamara Lewis in Proving Disability and Reasonable Adjustments: A Guide to evidence under the Equality Act 2010 (pdf, unison.org), Sept 2018, at page 19. After talking about the example above on back pain and skiing, she says:

“On the other hand, if someone has to avoid normal and routine parts of life, they surely must be considered disabled…..

The idea that someone is not disabled if they can reasonably be expected to modify their behaviour is rather dangerous. To what extent is it “reasonable” to expect someone with migraine to avoid red wine and cheese or someone with asthma to give up smoking or owning a cat, if these are trigger factors? It should be strongly argued that as soon as someone has to follow restrictions on very normal activities, there is clearly a substantial adverse impact and they are disabled.”

She goes on to discuss those with diabetes and nut allergies.

I would add that there is no basis in the wording of the Equality Act for saying that if it is “reasonable” to avoid a particular “normal day-to-day” activity, then that activity somehow doesn’t count.

There are particular difficulties on how para B7 fits with para B9 as regards avoidance strategies due to things such as social embarrassment (particularly relevant to stammering). See Avoidance strategies: stammering below.

Avoidance strategies: stammering

Word substitution

I’ll discuss avoidance strategies mainly in the context of word substitution, as I think that’s where an employer etc is most likely to try to argue that para B7 helps their case as regards stammering.

People who stammer often substitute words or phrases when they feel they are going to stammer, so as to appear fluent. See Hiding the stammer>Word substitution and fillers.

An employer etc may argue that this is something a person who stammers can reasonably be expected to do to reduce their stammering, and that doing it – or the ability to do it – should be seen as reducing the adverse effects of stammer. I would strongly argue this is wrong, for various reasons:

  • Firstly, and perhaps most importantly, word substitution is not something a person who stammers can reasonably be expected to do. Word subsitution is seen by therapy and self-help approaches as a negative stammering behaviour which the person who stammers is encouraged to move away from. Below Not reasonable to say a person should not avoid.
  • Paragraphs B9 and D17 of the Guidance seem to clarify that negative effects of stammering avoidance strategies (including word substitution, use of “fillers”, speaking less, and avoiding situations) should be taken into account towards the stammer having a substantial effect.
  • In any event, as discussed above, the Guidance is not legally binding, and has been criticised so far as it applies to modifying or avoiding normal day-to-day activities.
  • More generally, legal arguments for the adverse effects of word substitution being taken into account are discussed on Hiding the stammer>Word substitution and “fillers”. This includes the possible argument of using EqA 1 Schedule 1 para 5 to take the stammer as it could well be without word substitution, something to which para B10 refers (pointing to paras B12-B17).

Not reasonable to say a person should not avoid words etc

Though many people who stammer substitute words and phrases, word subsitution is seen as a negative stammering behaviour which therapy and self-help approaches aim to move the person away from. Therefore it is not something the person can reasonably be expected to do. The same applies to other types of avoidance, such as avoiding phone calls, or contributing less to a conversation.

See for example Malcolm Fraser’s well-known book Self-Therapy for the Stutterer (pdf, stutteringhelp.org), 2010, at pages 46 and 85. Guideline 5 on p.46 is: “Do your best to stop all avoidance, postponement or substitution habits”. It explains “While temporarily affording relief, such habits actually increase your fears and cause more trouble in the long run.” But it’s not easy to reduce or stop avoidances. “This can be a really tough assignment but many authorities feel that non-avoidance will give you more relief than any other therapy procedure.”

This links with the negative effects of trying to hide one’s stammer and, conversely, the benefits of being open about it. There are countless articles, podcasts etc about this online. Just one example is Living with a covert stammer (stamma.org), December 2019.

Guidance says negative effects of avoidance strategies are important

Paragraphs B9 and D17 of the Guidance seem to clarify that negative effects of stammering avoidance strategies such as word substitution, use of “fillers”, saying less, and avoiding situations should be taken into account towards the stammer having a substantial effect.

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 his or her behaviour, for example by use of a coping or avoidance strategy”, so as to reduce or prevent effects of the impairment on normal day-to-day activities. Para B9 says account should also be taken of where a person avoids doing things which, for example, cause social embarrassment or fatigue (or various other listed things). “It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person.” It is important to consider the things that a person cannot do, or can only do with difficulty.

How para B7 and B9 work together is rather unclear. However, while para B7 seems to talk of possible benefits of some avoidance strategies, para B9 seems clear that the negative effects of avoidance strategies such as word subsitution are to be taken into account towards the impairment having a substantial effect. “Substantial social embarrassment” is a fair description of the main reason why people who stammer commonly try to avoid stammering, through use of word substitution or otherwise. Fatigue could also be relevant. In any event para B9 says those reasons for avoidance are examples – meaning that at least similar reasons should also be covered.

Furthermore, the stammering example in para D17 of the Guidance expressly says “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.” This implies that word substitution – and other avoidance strategies such as insertion of “fillers”, avoiding difficult situations and speaking less – are relevant adverse effects in deciding that the stammer in the D17 example has a substantial effect. Paragraphs B7-B10 above should be read in the light of the para D17 example: the introduction to Section B of the Guidance says “This section should not be read in isolation but must be considered together with sections A, C and D.”

Avoiding difficult situations

What if someone who stammers avoids eg phone calls, or socialising? Should this been seen as mitigating the effects of the stammer under para B7 of the Guidance. Absolutely not. Essentially here the same arguments apply here as for word substitution (above). In summary;

  • Under para B7 it is not reasonable to say a person should not avoid.
  • Paragraphs B9 and D17 of the Guidance seem to clarify that negative effects of stammering avoidance strategies such as word substitution, use of “fillers” and avoiding situtations should be taken into account towards the stammer having a substantial effect.
  • The Guidance is not legally binding, and has been criticised so far as it applies to modifying or avoiding normal day-to-day activities.
  • More generally, legal arguments for the adverse effects of avoidance of situations being taken into account, maybe including how the stammer would be if the person were not avoiding, are discussed on Hiding the stammer. This includes the case of Goodwin v Patent where the EAT said essentially that the tribunal should consider the person’s ability to do not only what the person does but also what they are avoiding doing.

Speech techniques

Paragraphs B7-B10 expressly refer to para B12 of the guidance which says that if measures are being taken to treat or correct an impairment, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment could well have that effect (under EqA Schedule 1 para 5: see Therapy, and using speech techniques or devices).

As discussed at that link, it seems tribunals should generally disregard the effect of speech techniques and other therapeutic measures, and consider whether the stammer “could well” have the required substantial effect if the person were not using them. Accordingly the effect of the stammer should be considered without use of speech techniques, rather than with them.

Also note that:

  • arguments such as “Well, he wouldn’t stammer if only he did such and such” show a lack of understanding of stammering. Certain techniques may be useful for some people who stammer but not for others.
  • In any event it can be difficult to apply techniques in the ‘outside world’ beyond the therapy setting,
  • they are likely to break down sometimes (or often), and
  • relapse after speech therapy is common.
  • Furthermore some techniques may involve a loss of spontaneity which the person legitimately and reasonably values.

Other steps to reduce stammering?

Does para B7 of the Guidance have any effect as regards stammering? That’s not clear.

Say someone finds drinking coffee makes their stammering more severe. Should the effect of the stammer be assessed as it would be if the person avoided drinking coffee? That is unclear and controversial, as will be apparent from the cases above and Modifying or avoiding normal day-to-day activities? above.

If the option of not drinking coffee is taken into account in reducing effects of the stammer, then at least not being able to drink coffee (a normal day-to-day activity) should be seen as an adverse effect of the stammer. Whether that together with how the stammer is without coffee is a substantial (ie more then minor or trivial) effect will depend on the facts. Normally the coffee (or other modification to behaviour) will not make sufficient difference to the effects of the stammer on the person’s day-to-day life anyway – the stammer will probably have the required substantial affect even if coffee is avoided. If avoiding coffee did make sufficient difference, then in deciding whether avoiding coffee is only a trivial inconvenience it might help if the employment judge is a coffee-lover. More seriously, evidence that coffee is important to the claimant should be helpful.

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