This page looks at how far if at all para B7-B10 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 be taken into account as contributing towards there being a substantial effect.
- Employers etc may suggest that word substitution, for example, 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. Some reasons are:
- Word substitution 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.
- It is the EqA statutory wording rather than the Guidance that binds the courts, but in any event the EAT has made clear in Elliot, 2021, that para B7 is subject to B9 of the Guidance.
- 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: 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.
However para B9 says account should 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 taken 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
Elliot v Dorset County Council, EAT 2021
An employment tribunal had held the claimant’s Asperger’s syndrome was not a disability, partly because the effect of the claimant’s reasonable adjustments (as the tribunal called them) to his own behaviour and attitude were that his impairment ceased to have a significant adverse impact on his ability to do every day tasks or his work. However the EAT overturned the tribunal’s decision.The EAT said that on occasions excessive focus is given to the first paragraph of para B7 (reasonably modifying behaviour through a coping or avoidance strategy), without sufficient consideration of the rest of B7 to B10 which significantly modifies that general guidance (para 58 of EAT decision).
On an overview of B7 to B10, said the EAT at para 59, “where a person has an impairment that substantially affects her/his ability to undertake normal day-to-day activities the person is unlikely to fall outside the definition of disability because they have a coping strategy that involves avoiding that day-to-day activity. This part of the guidance is concerned generally with avoidance of things that are not a component of normal day-to-day activities”.
The EAT added later (at para 78), in response to the tribunal’s view above that the claimant’s impairment did not have an adverse effect because of the claimant’s coping strategies: “If the claimant had significantly altered his day-to-day activities, or avoided some day-to-day activities, that would not be a proper basis for concluding that he is not disabled”.
The EAT also criticised the tribunal decision for not considering whether the claimant’s coping strategies might break down in some circumstances, such as when a person is under stress (para B10 of the Guidance), and for not considering whether his coping strategies might constitute measures to be disregarded pursuant to paragraph 5 of Schedule 1 EqA 2010.
If there is any tension between the Guidance and any provision of the EqA 2010, the statute must prevail, said the EAT (para 62).
Taylor v Ladbrokes (bailii.org), EAT, 2016
After quoting paragraphs B7 and B10 of the Guidance, 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”.
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.Note: 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 further the discussion by Tamara Lewis linked below under Modifying or avoiding normal day-to-day activities?
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 (DDA 1995) guidance similar to para 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.
General discussion of paragraphs B7-B10
Guidance is not legally binding
The first point to make is that the 2011 Guidance is not law, as pointed out in Elliot and Taylor above. Tribunals should start with the statutory language of the Equality Act. The courts should take the Guidance into account in at least some circumstances, but they are not bound to follow it. The EAT in Virdi above (2006) applied para B7, but that was before the House of Lords decision in SCA Packaging v Boyle (2009) and other cases giving the Guidance less weight. See further Legal effect of statutory guidance and codes.
Avoiding or modifying normal day-to-day activities
I discuss below avoiding abnormal activities – such as someone with chronic back pain avoiding skiing (para B7 of the Guidance), or someone with an extreme fear of heights not going up the Eiffel Tower (para B8). However that is very different from modifying or avoiding some normal day-to-day activities, which is far more common and important. The 2011 Guidance says:
B9. Account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment, or avoids doing things because of a loss of energy and motivation. It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person. …
In other words, avoidance (in relation to normal day-to-day activities) should be taken into account towards there being a substantial adverse effect. The Employment Appeal Tribunal (EAT) in Elliot above, 2021, was clear that paras B7 to B10 should be read together, so an employer cannot just point to para B7 on its own and say the worker could reasonably be expected to modify their behaviour so there is no substantial effect. In particular the EAT said:
59 ….where a person has an impairment that substantially affects her/his ability to undertake normal day-to-day activities the person is unlikely to fall outside the definition of disability because they have a coping strategy that involves avoiding that day-to-day activity. This part of the guidance is concerned generally with avoidance of things that are not a component of normal day-to-day activities. …78. …If the claimant had significantly altered his day-to-day activities, or avoided some day-to-day activities, that would not be a proper basis for concluding that he is not disabled. …
Elliot v Dorset County Council, EAT, 2021
Perhaps para B7 of the Guidance does apply as regards, for example, turning one’s head to be able to see properly when crossing the road or when trying to recognise someone, as in Virdi above. However avoiding or (at least significantly) altering normal day-to-day activities is consistent with the claimant being disabled.
What of the EAT in Elliot referring to a “significant” alteration in normal day-to-day activities. The statutory test the court is applying is whether the effect on ability to carry out normal day-to-day activities is “more than minor or trivial”. One can see that in the Virdi example, the need to move one’s head to see properly may (depending on the facts) have only a “minor or trivial” effect on one’s ability to cross the road, and might similarly be described as not “significant”. However as the EAT in Elliot itself says, the statutory test (ie whether the effect “more than minor or trivial”) prevails.
Even before the Elliot decision, modifying or avoiding normal day-to-day activities was discussed by Tamara Lewis in Proving Disability and Reasonable Adjustments: A Guide to evidence under the Equality Act 2010 (pdf, archive of unison.org), Sept 2018, at page 19. After talking about the examples below 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.
Avoiding abnormal activities
According to an example in para B7 of the Guidance, 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 a not-normal activity which has knock-on effects on the person’s ability to do normal day-to-day activities. Possibly, if the reason you can’t go shopping (a normal day-to-day activity) is that you exacerbated your chronic back pain by going skiing, then this doesn’t count as a substantial effect on normal day-to-day activities. Is that really right though? It is difficult to reconcile with Kaltoft v Municipality of Billund (bailii.org), 2014, a case on obesity where 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”.
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 substitution 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, and the EAT decision in Elliot above, 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. Elliot clarified that para B7 is subject to para B9.
- 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 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).
In any event, as pointed out in Elliot for example, para B10 says the possibility that the strategy will break down in certain circumstances, for example under stress, must be taken into account.
Not reasonable to say a person should not avoid words etc
Though many people who stammer substitute words and phrases, word substitution is seen as a negative stammering behaviour which therapy by speech and language therapists 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. A speech and language therapist specialising in stammering should be able to give expert evidence on this if required.
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 stammering. There are countless articles, podcasts etc about this online. Just one example is Living with a covert stammer (stamma.org), 2019.
Guidance says negative effects of avoidance strategies are important
Paragraphs B9 and D17 of the 2011 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. The EAT in Elliot makes clear that B7 (reasonably modifying behaviour by coping or avoidance strategy) is subject to B9.
Para B9 of the Guidance says account should 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.”
“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.”
Finally a reminder that EAT in Elliot concluded in the light of paragraphs B7-B10 of the Guidance:
59 ….where a person has an impairment that substantially affects her/his ability to undertake normal day-to-day activities the person is unlikely to fall outside the definition of disability because they have a coping strategy that involves avoiding that day-to-day activity. This part of the guidance is concerned generally with avoidance of things that are not a component of normal day-to-day activities. …78. …If the claimant had significantly altered his day-to-day activities, or avoided some day-to-day activities, that would not be a proper basis for concluding that he is not disabled. …
Elliot v Dorset County Council, EAT, 2021
Avoiding difficult situations
What if someone who stammers avoids eg phone calls, or socialising? Should this be 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 (bolstered by the EAT decision in Elliot) seem to clarify that negative effects of stammering avoidance strategies such as word substitution, use of “fillers” and avoiding situations 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 indeed often), and
- relapse after speech therapy is common.
- Furthermore some techniques may involve a loss of spontaneity which the person legitimately and reasonably values.
