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Definition of disability: Northern Ireland

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Last updated 17th August, 2019.

This gives a rough guide to the meaning of ‘disability’ in Northern Ireland discrimination law, mainly as regards stammering. A separate page deals with Northern Ireland more generally.

Summary

  • The definition of ‘disability’ in Northern Ireland discrimination law is broadly the same as the rest of the UK.
  • The main difference is not in the legislation itself, but the fact that the 2011 statutory guidance for the rest of the UK (which at para D17 has a helpful example on avoidance strategies for stammering being being seen as a substantial effect) does not apply in Northern Ireland. Northern Ireland has 2008 statutory guidance which may or may not still apply.
  • Even so there is a strong argument that hidden effects of stammering, eg avoiding words or difficult speaking situations, or speaking less, should be taken into account in deciding whether a stammer has a substantial adverse effect: below Hidden effects of stammering.

Legal definition

The definition of disability in Northern Ireland discrimination law is in Part 1 and Schedule 1 of the Disability Discrimination Act 1995 (DDA). The definition is largely the same as in Equality Act 2010 for the rest of the UK. Therefore most of my pages on the meaning of ‘disability’ should apply: see Is the stammer a disability? The main difference is that the 2011 statutory guidance (including the stammering example at para D17) does not apply in Northern Ireland, and see below Some differences.

As in the Equality Act 2010, the basic DDA definition of disability is:

… a person has a disability … if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
Section 1 DDA 1995

However there are more detailed rules which supplement that, mainly in Schedule 1, and also important case law. I outline just some of the points below:

‘Substantial’

The effect on normal day-to-day activities must be substantial. However ‘substantial’ means only ‘more than minor or trivial’. It does not mean ‘very large’. The authority for this is Goodwin v Patent Office, and it is stated for example in para 3.2 and Appendix B of the 2013 NI Employment Code of Practice. See my discussion for the rest of the UK at Substantial effect.

The Equality Act 2010 actually defines ‘substantial’ in s.212(1) EqA. There is no definition of ‘substantial’ in the DDA, but its meaning in the DDA has been well established by case law and guidance.

‘Normal day-to-day activities’

Northern Ireland is different from the rest of the UK in still having a ‘list of capacities’ (below). However generally UK case law should be relevant in Northern Ireland, including cases (based on EU case law) holding that for employment discrimination almost any work activities are seen as ‘normal day-to-day’. This might include for example presentations and job interviews. In any event, the stammer may well have a more than minor or trivial effect on phone calls, for example, which is a more obvious ‘normal day-to-day’ activity. This paragraph is only a very brief summary: for more see Normal day-to-day activities.

List of capacities

In Northern Ireland (but not the rest of the UK) an impairment is to be taken to affect the person’s ability to carry out normal day-to-day activities only if it affects one of a list of capacities set out in DDA Sch 1 para 4.

This is not a problem for stammering as the list includes “speech”. Also helpful in the list are “taking part in normal social interaction” and “forming social relationships” which were added by the Autism Act (Northern Ireland) 2011.

Though not an issue for stammering, in some cases the list of capacities may clash with EU law requirements for a wide meaning of normal day-to-day activities in employment discrimination cases (Normal day-to-day activities>EU law). The courts will have to resolve this (pre-Brexit at least).

Some differences from the rest of the UK

This list of differences between the Equality Act 2010 and the Northern Ireland definition of disability is not necessarily exhaustive:

Perceived disability

Perceived disability probably cannot be claimed in Northern Ireland (at least without a European Court case) because it is inconsistent with the wording of DDA 1995.

Therefore the claimant probably needs to actually have a disability within the DDA definition, rather than just being ‘perceived’ as having one.

Northern Ireland guidance on definition of disability

On the Equality Commission for Northern Ireland website there is non-statutory guidance, and in statutory Codes of Practice there is a summary of the definition of disability, for example in the Code of Practice on employment linked from Employment: disability discrimination in Northern Ireland>Guidance (in Appendix B of the Code, subject to updates on pages 2 to 6). Here however I focus on statutory guidance specifically on the definition of disability under s.3 DDA.

The 2011 statutory guidance on definition of disability for the rest of the UK does not apply in Northern Ireland. Accordingly the helpful example on stammering and hidden effects at para D17 of the 2011 guidance is not statutory guidance in Northern Ireland (but see below).

NI 2008 statutory guidance which may or may not still be in force

This statutory guidance on the definition of disability in Northen Ireland was brought into effect in 2008 by SR 2008/141. So far as I can see the guidance has never been repealed, so it may remain in force.

However this 2008 guidance does not seem to be on the website of the Equality Commission for Northern Ireland nor anywhere else (apart from on an archive of an old website linked above). Also the most recent industrial tribunal cases I can find citing the guidance are from 2016. The guidance does not seem to be used at present.

(If the 2008 guidance is still in force: as to how far courts must take statutory guidance and Codes into account see Legal effect of statutory guidance and codes. That page focusses on the rest of the UK, but the position in Northern Ireland is likely to be much the same. Indeed a leading case on the issue, SCA Packaging v Boyle, is a Northern Ireland case.)

Example on stammering

An example in the NI 2008 statutory guidance, which as discussed above may or may not be in force:

B8: “A man has had a stammer since childhood. He does not stammer all the time, but his stammer can appear, particularly in telephone calls, going 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 strategy. He may try to avoid telephone calls where he believes he will stammer, or he may not speak as much during telephone calls. He may sometimes try to avoid stammering by substituting words, or by inserting extra words or phrases.

In determining whether he meets the definition of disability, consideration should be given to the things he cannot do or only do with difficulty.

This is – or was – of some help in raising awareness of the kind of difficulties faced by people who stammer. It starts with wording similar to para D17 of the 2011 statutory guidance for the rest of the UK, but is different mainly in not containing a clear statement that it would be reasonable to regard the effects mentioned, including the avoidance, as ‘substantial adverse effects’ within the DDA.

Accordingly, even if the 2008 guidance is still in effect, there is not the explicit statement for Northern Ireland that avoidance strategies such as word substitution and avoiding situations – or the effects they hide – can be a substantial effect on normal day-to-day activities (but see next heading).

Hidden effects of stammering

Even in the absence of statutory guidance, I expect that a tribunal in Northern Ireland would come to the conclusion that hidden effects of stammering, eg avoiding words or difficult speaking situations, or speaking less, should be taken into account in deciding whether a stammer has a substantial adverse effect. (See Hiding the stammer for more on avoidance and stammering, albeit in the context of Equality Act 2010).

Goodwin v Patent Office (1998) is Employment Appeal Tribunal authority for taking into account avoidance due to a communication impairment. S v Lord Advocate (2000) which disregarded hidden effects is only a first instance employment tribunal decision and so not binding authority. A 2007 industrial tribunal decision from Northern Ireland (though also not binding authority) which took avoidance into account:

S v Translink, 2007, Industrial Tribunal Northern Ireland
The industrial tribunal held that the claimant’s stammer was a ‘disability’ within the Disability Discrimination Act 1995. Among other things, the claimant would employ avoidance strategies by asking other people to do things for him.

A 2007 English employment tribunal case where hidden effects of a stammer were taken into account and the stammer held to be a disability is Wakefield v HM Land Registry.

It can also be argued, for example, that the effects listed in the example constitute a limitation going beyond the normal differences in ability which may exist among people (see paragraph B1 of the 2008 Northern Ireland guidance).

For discussion of the position in the rest of the UK, which will also be relevant in some respects for Northern Ireland, see Hiding the stammer and Is every stammer a disability.

‘Impairment’

A point worth mentioning is that “communication impairments such as aphasia or stammering” are expressly mentioned as an ‘impairment’ in para A6 of the NI 2008 guidance. These would be an impairment whether or not expressly mentioned though. The much more important question is whether the impairment has a substantial and long-term adverse effect on ability to carry out normal day-to-day activities, as discussed above.