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Definition of disability: Northern Ireland

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Last updated 23rd August, 2019.

This page gives a rough guide to the meaning of ‘disability’ in Northern Ireland discrimination law, mainly as regards stammering. Separate pages deal 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 does not apply, including its helpful example at para D17 on avoidance strategies for stammering being being seen as a substantial effect. Northern Ireland has 2008 statutory guidance which may or may not still apply.
  • In any event there is a strong argument that hidden effects of stammering, eg avoiding words or difficult speaking situations, or speaking less, are relevant in deciding whether the 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 to a large extent 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 this, 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 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. The word is not defined 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 on normal day-to-day activities 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’. That might include for example presentations and job interviews. In any event the stammer may well have a more than minor or trivial effect on eg phone calls, which are 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 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 employment cases the list of capacities may clash with EU law requirements for a wide meaning of normal day-to-day activities (Normal day-to-day activities>EU law). The courts would have to resolve this (at least pre-Brexit).

Some differences from the rest of the UK

The following 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, and hidden effects

On the Equality Commission for Northern Ireland website there is non-statutory guidance on the definition of disability, and a summary of the definition in statutory Codes of Practice, 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 under s.3 DDA specifically on the definition of disability.

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 Northern 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 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 statutory guidance is still in force, as to how far courts must take it 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.

Even so the text in para B8 immediately before that example is helpful, and puts the example in context:

“Account should also be taken of where a person avoids doing things which, for example, cause … substantial social embarrassment… It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person. In determining a question as to whether a person meets the definition of disability it is important to consider the things that a person cannot do, or can only do with difficulty, rather than focussing on those things that a person can do.”

Accordingly the guidance specifically mentions avoidance being taken into account, including due to social embarrassment. The stammering example can be seen as an example of avoidance (to be taken into account), and the last sentence of the example basically just repeats the last sentence of the preceding text.

Hidden effects of stammering

I expect that a tribunal in Northern Ireland would see hidden effects of stammering, eg avoiding words or difficult speaking situations, or speaking less, are relevant 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).

Firstly I think the 2008 statutory guidance (if still applicable) supports that: see above Example on stammering.

In any event though, 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 statutory 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.

20th anniversary of stammeringlaw, 1999-2019