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
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
‘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
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. See Brexit: disability discrimination in Northern Ireland on continuing obligations of Northern Ireland to comply with the EU directive and Brexit: Effect of EU law when interpreting Equality Act from 2021 (the EU (Withdrawal) Act 2018 discussed on the latter page also applies to employment provisions of the DDA 1995).
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:
- the 2011 guidance for the rest of the UK (including the stammering example at para D17) does not apply in Northern Ireland. As to how far there is
guidance for Northern Ireland, see below Northern Ireland guidance ondefinition of disability; - in Northern Ireland a normal day-to-day activity must fall within the list of capacities (above);
- discrimination based on perceived disability (below) may not be unlawful in Northern Ireland.
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.
NI 2008 statutory guidance which may or may not still be in force
- Link to archive of the NI 2008 guidance: ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (on archive of ofmdfmni.gov.uk).
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.
(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
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.
‘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
