If a person applying for a job does not tell the employer about the stammer, how far may that affect any rights they have under the Equality Act 2010? And how much should the person tell the employer about eg reasonable adjustments he wants? This page assumes that the stammer is a ‘disability as defined.
- Whether, when and how a job applicant should talk to a potential employer about the stammer is largely not a legal question. You could consider what strengths your stammer has given you and point them out to employers.
- If you decide to let the employer know about the stammer in advance of the interview, you may wish to do so after receiving the invitation to the interview, when agreeing or arranging a time for it.
- Consequences of not telling the employer in advance of the interview include that any adjustments are less likely to be made in practice, and it may reduce your legal rights.
- I discuss below What to tell the employer in advance of the interview, for example consider being specific about what adjustments you want so far as possible, and make clear you are open to discuss adjustments.
- I deal more briefly with any legal consequences of not mentioning the stammer at the interview or assessment, if you haven’t done so before.
- Finally there is a section on Responding incorrectly to a question on disability. A prudent employer is likely not to dismiss for deceit but to consider whether the disability affects the person’s ability to do the job.
Whether, when and how a job applicant should talk to a potential employer about the stammer is largely not a legal question. It is discussed to some extent under ‘To disclose or not’ on Job hunting & interviews (stamma.org). You could consider what strengths your stammer has given you and point them out to employers:
Examples of strengths from a stammer might include resilience, creativity, patience, ‘listening intelligence’ (stamma.org), writing, and other communication skills such as awareness of needs of others, and being observant. Also for some jobs being ‘not perfect’, in other words having a vulnerability, may help people you are dealing with relate with you.
“There are advantages to stammering, especially in sales: your stammer makes you memorable, important in a world full of grey, boring people.”
A stammering odyssey (stamma.org), March 2020.
This web page on the other hand focuses on legal issues. Much of it is about the possibility of letting the employer know about the stammer in advance of the interview or assessment. However, it also says something about letting the employer know at the interview itself.
Also note there are rules restricting how far an employer can lawfully ask about disability before making a job offer – see Pre-employment enquiries.
Wait until receive invitation for interview?
If – in the light of what follows – you decide to let the employer know about the stammer in advance, you may wish to do so after receiving the invitation for the interview, when agreeing or arranging a time for it. This means it should not reduce the chances of being invited for an interview in the first place.
However, some people do choose to mention their stammer in the application form, in the context of giving positive examples of their skills and experience.
Consequences of not telling the employer in advance
In summary, if you want reasonable adjustments in the recruitment process:
- not giving the employer advance notice of the stammer may prejudice your legal right to adjustments; and
- not telling the employer in advance will often make it less likely in practice that any adjustments will be made.
- However, a job applicant may have Equality Act rights even without having given advance notice.
Firstly, and perhaps most importantly, in practice reasonable adjustments to a recruitment process are more likely to actually happen if you give the employer advance notice.
Secondly, if the employer did not know of the disability (and the likely disadvantage) it may be able to rely on the ‘lack of knowledge’ defence, to say the reasonable duty did not apply. At least in some cases the stammer (and disadvantage) will be plain in any event when the job applicant arrives for the interview. However as discussed below and at Knowledge of disability>Better to tell employer etc rather than rely on constructive knowledge, except in the most obvious cases it is difficult to be sure what conclusion a tribunal will reach regarding what knowledge an employer can be expected to have.
Thirdly, what adjustments it is reasonable for the employer to have to make may be less if the employer did not have advance notice of the disability. Accordingly the legal obligations on the employer may be reduced if advance notice is not given. See Knowledge of disability>Reasonableness of adjustments: relevance of advance knowledge. For example:
It is evident at an interview that the job applicant is taking significantly longer than normal to say things. However another candidate’s interview is booked after this one and the employer doesn’t want to keep them waiting too long. The employer therefore considers it unreasonable to offer significant extra time for this interview. If extra time had been arranged in advance, the interview of the job applicant who stammers could have been arranged at the end of a session, with scope for it to overrun as required. (Even if extra time immediately is not reasonable, there would still be the question whether it is reasonable to, say, defer the interview to a later occasion when extra time could be given – as the tribunal seemed to contemplate in Y v Calderdale Council. Also other adjustments as well as extra time may be reasonable.)
To conclude, one may still have rights without having raised the issue of adjustments in advance, or at all. However, the clearest way to trigger the employer’s obligation is to give advance notice. What to tell the employer is discussed below: What to tell the employer in advance of the interview.
Discrimination arising from disability (s.15)
‘Discrimination arising from disability’ (s.15) is where the employer treats a disabled person unfavourably “because of something arising in consequence of” the disability. The employer has a defence if it shows either justification or – the focus of this page – that it did not know, and could not reasonably have been expected to know, that the individual had the disability: see Knowledge of disability: Discrimination arising from disability.
This could include being turned down for a job because of, just to take a few examples:
- communication skills affected by the stammer,
- circumlocutions to get round words you have difficulty saying;
- excessive fillers such as ‘eh’, ‘you see’, ‘well’ when you can’t say the next word;
- not saying enough in response to questions to put one on a level playing field with other candidates, because of wanting to stammer as little as possible or because of difficulty speaking (though this issue of limited responses is perhaps best addressed through reasonable adjustments: see Examples of reasonable adjustments: Recruitment>Limited responses).
As with reasonable adjustments above, letting them know you have a stammer should make it clearer that the employer can’t rely on the defence that they did not know of the disability.
If the employer knew of the disability, it seems it is not legally a defence that the employer did not know that, for example, the circumlocutions result from the disability: Knowledge of causal link with disability under s.15 EqA.
However obviously if you want the employer to actually disregard things such as this, which the employer may not know are an effect of the stammer, you will probably need to tell the employer about them. How far this is a good idea and whether you want to do so is up to you.
If the employer operates ‘Disability confident’ and guaranteed interviews, having a disability may entitle one to an interview. Obviously one would need to tell the employer about the disability when applying for the job. (This is not actually a legal point, but one to bear in mind.)
Where someone applies for promotion, or another job at the same firm, the employer is likely to already know about the stammer. See particularly Knowledge of disability>Knowledge of any employee or agent will normally count.
Even so, letting the relevant person in the organisation know about the stammer and any need for adjustments may be helpful in practice, and might perhaps help any legal argument.
In S v Translink an existing employee applying for a different job did not raise the issue of the stammer. The employer was able to rely on the ‘lack of knowledge’ defence even though his line manager knew of the stammer. That decision is probably wrong, but it illustrates what can happen in practice if those dealing with the job selection process do not know of the disability.
What to tell the employer in advance of the interview
If you decide to tell the employer about the stammer in advance of the interview, what should you tell them about? Obviously this is up to you, bearing in mind your own stammer, but consider the following:
1. Say you have a stammer
Say you have a stammer which is a disability within the Equality Act.
The employer has a defence to both the reasonable adjustment duty and a s.15 claim for discrimination arising from disability if it did not know and could not reasonably be expected to know of the disability: see Knowledge of disability.
2. Specify what adjustments you want
Ask for any adjustments you want, specifying what particular adjustments you want so far as you can. (There are examples at Examples of reasonable adjustments: Recruitment.)
Most importantly this makes it more likely the particular adjustments will be made in practice.
From a legal point of view, specifying the adjustments helps with any arguments the employer may raise that it could not reasonably be expected to know of disadvantages arising from the individual’s stammer, so far as the adjustments aim to address them. There are possible counter-arguments one can raise as a claimant (next sub-heading) but it is safer legally not to have to rely on them: see Knowledge of disability>Better to tell employer etc rather than rely on constructive knowledge.
If you do not know enough about the recruitment process to say fully what adjustments you want, you could say so and invite or request discussion (below). You could try to tell the employer any key ways you may be disadvantaged by the recruitment process: below Consider telling the employer what the ‘substantial disadvantage’ is.
In addition, helpful web pages to point employers to are Recruiting someone who stammers (stamma.org) and Talking with someone who stammers (stamma.org). (Also Stamma has a page on Reasonable adjustments (stamma.org).) However I still think it’s a good idea to specify to the employer what particular adjustments you would like, so far as you can.
Possible arguments that you don’t to have tell the employer of specific adjustments and disadvantages
Even if the employer knows you have a stammer, as discussed above and in 3. below the legal position is clearer if you have told the employer what adjustments you want and of any substantial disadvantages which are not obvious. But what if you haven’t told them? Although best avoided if possible, legal arguments for not having to tell the employer include the following:
- As regards the employer’s defence of not knowing about the disability or the “substantial disadvantage”, the employer has ‘constructive knowledge’ of things it would have found out if it had made the enquiries (eg asking the individual) which it could reasonably have been expected to make: Knowledge of disability>Constructive knowledge. So the tribunal needs to decide what enquiries the employer could reasonably have been expected to make, and would they have elicited the information.
- It the employer has actual or constructive knowledge of the disability and disadvantage (so the ‘lack of knowledge’ defence does not apply), an employer who does not consult on reasonable adjustments with the job applicant, eg as to what adjustments would help, is at serious risk of being in breach of the duty, since it cannot “pray that ignorance in aid”: Reasonable adjustment rules: employment>Consultation.
- The onus to make reasonable adjustments is on the employer: Reasonable adjustment rules: employment>Onus to comply is on the employer.
3. Consider telling the employer what the ‘substantial disadvantage’ is
If it is not obvious, consider telling the employer what the substantial (ie “more than minor or trivial”) disadvantage is that you would be under if the adjustment is not made. Not knowing the ins and outs of the recruitment process, you may not know exactly what adjustments will be appropriate or what disadvantages you will be under. However without writing an essay you could try to tell the employer any key ways you may be disadvantaged by the recruitment process, as well as suggesting any adjustments you would like and requesting or inviting discussion (below).
For example: If you are asking that the employer pose follow-up questions if your answers are unduly short (as in Y v West Yorkshire Combined Authority, below), and/or that the employer gives no less weight to details in your written application and CV than interview answers, the disadvantage might be that you will tend to limit what you say at the interview because of the stammer. You may therefore not say enough to put you on a level playing field with other candidates. Limiting what you say might be either so you don’t stammer as much, or because of the time or effort to speak.
In Y v West Yorkshire Combined Authority, below, the tribunal did not see the employer as having actual or constructive knowledge of this disadvantage (at least as regards the presentation), even though it knew of the job applicant’s stammer.
The employer has a defence to a reasonable adjustments claim if it does not know and could not reasonably be expected to know of the substantial disadvantage. If you have specifically asked for a particular adjustment, it may be difficult for the employer to say it could not reasonably have been expected to know what the substantial disadvantage was (eg they could have asked you if they could not guess it from the adjustment). However these things are not necessarily clear, and see this case example:
Y v West Yorkshire Combined Authority, Employment Tribunal, 2020
The claimant told the employer he had a stammer and specifically requested that the panel ask follow-up questions in the interview, presumably because of the risk of his responses being limited because of his stammer. Even so the tribunal found that the employer did not know and could not reasonably be expected to have known that the claimant had any difficulties in expressing the oral content of his presentation.
The tribunal said the employer did know that the claimant was likely to be at a substantial disadvantage in relation to the time he took to communicate and his speech fluency.
4. Explain why it would be unfair not to make the adjustment?
This should not be legally required if the employer knows of the disability and disadvantage. However if it is not obvious, it may help in getting changes made.
The employer may not appreciate why its recruitment process is unfair, without this being explained.
Example: The employer may think a group exercise or group interview is a fair way to assess how candidates will perform in a meeting in the actual workplace. The employer may not appreciate that it is not a fair way to assess the individual who stammers because the assessment has not been designed to match the situation as it will be in the workplace – if the individual would find the workplace situation easier as regards their stammer.
See Oral assessment in recruitment>Is the situation in which the skills are tested equivalent to the actual workplace situation? and (on the same page) >Technical note: Employers’ knowledge and evidence for tribunal about difference in situation.
5. Invite or request discussion
Either specifically request or invite the employer to discuss with you what adjustments are appropriate, or (if you are happy with whatever adjustments you have suggested without discussing them) at least make clear you are happy to discuss them.
This is probably a good idea anyway, but is particularly important if you are not clear on the recruitment arrangements and so cannot say what adjustments will be appropriate for you. You may particularly want a discussion here.
A job applicant may not be clear on such things as what exercises they will be asked to take part in in the recruitment process (including in any assessment centre), the detail of how these will work, what their purpose is, how important particular skills are in the job (relevant to what can be adjusted), whether the assessment situation matches the workplace situation in which the skills/abilities will be required, what reasonable adjustments might be feasible in the job and so should be reflected in any exercises: see Oral assessments in recruitment (including on that page Discussing adjustments with the employer) and Presentations in recruitment. Finding out what adjustments are required may well involve talking through the recruitment process.
In Y v West Yorkshire Combined Authority, 2020, it sounds like the interviewers were not sure whether the individual would be happy to discuss adjustments, since they had read that stammering is of a sensitive personal nature. Making clear you want to or at least are happy to discuss them makes the employer more likely to do so in practice. Also legally it might help rebut any argument that the employer could not reasonably be expected to discuss them, and so did not have constructive knowledge.
In Y v Calderdale Council, 2003, the tribunal accepted the force of the job applicant’s argument that it was the employer which understood the exact purpose and nature of the recruitment process and that the applicant could not be expected to suggest all his own adjustments to cope with a process about which he was not fully informed.
Although s.60 Equality Act (Pre-employment enquiries) partially prohibits an employer from asking about health or disability before a job offer, the prohibition does not apply to enquiries necessary for the purpose of “establishing whether a duty to make reasonable adjustments is or will be imposed on [the employer] in relation to [the job applicant] in connection with a requirement to undergo an interview or other assessment.”
6. Discrimination arising from disability (s.15)
Consider whether or not to say anything further about the effects of the stammer as discussed above: Consequences of not telling the employer in advance>Discrimination arising from disability (s.15).
If a job applicant hasn’t told the employer about the stammer before the interview or assessment, are there any legal consequences of not mentioning it at the interview or assessment itself?
One might think that the stammer will usually be obvious at the interview anyway so that the employer should be aware of the disability, without being expressly told. This was the case in:
Y v Calderdale Council (2003), Employment Tribunal
The tribunal found that by the time the interviewers came to ask the interview questions, it was obvious and certain to both of them that the applicant was at a substantial disadvantage from his disability.
However, sometimes a tribunal may hold that an employer does not have notice of the stammer, even if the job applicant is stammering at the interview. The tribunal held this in S v Translink (below). It is far from clear if a tribunal would take a similar approach now in a properly argued case. However the Translink case illustrates that an employer may seek to raise an argument based on lack of knowledge even where one would think the disability is evident:
S v Translink, Industrial Tribunal Northern Ireland, 2008
It was clear from the evidence and the notes of the interviewer that the claimant’s speech impediment was notable in the interview. However the tribunal found that the interviewer’s explanation for not commenting on it was credible. The tribunal said the interviewer had no way of knowing whether the stammer was as a result of nerves or a ‘disability’ – as no information had been provided to him with regard to that issue. The employer could not reasonably be expected to know the claimant had a disability likely to put him at a substantial disadvantage in the assessment process, and accordingly had a defence to the reasonable adjustment duty.
Comment: This decision can be criticised: S v Translink>Lack of knowledge even though stammer was notable at the interview. Even so, it shows that the tribunal may come to an unexpected decision even if the stammer is evident.
If the stammer is not sufficiently evident and the employer turns down the applicant because of something arising from the stammer, the employer may have a defence to discrimination arising from disability. The employer has this defence if it shows that it did not know, and could not reasonably have been expected to know, that the individual had the disability. The same defence applies to reasonable adjustment duty. See Knowledge of disability.
Also see above Consequences of not telling the employer in advance and What to tell the employer before the interview for discussion of possible consequences of not telling the employer eg what adjustments you want and what disadvantages the stammer puts you at in the recruitment process.
As to non-legal issues of telling the employer about a stammer at the interview (preferably in a positive way), see above Largely not a legal question.
Responding incorrectly to a question on disability
What if the employer asks about disability, and the job applicant answers the question falsely, and gets the job? (In practice, though, if an applicant who stammers is offered a job it will often. but not always, be evident to the employer by that stage that they have a stammer.)
Can employer dismiss the person?
Dismissal here may be unlawful under the Equality Act.
The employer might argue that it was the lying rather than the disability which was the reason for dismissal. However, the tribunal is likely to examine any such argument critically (see the Fitzpatrick case below).
To try to avoid liability, a prudent employer is likely to consider how far, if at all, the disability actually affects the person’s ability to do the job, bearing in mind any reasonable adjustments. The employer could then seek to show objective justification if it does decide to dismiss, on the basis that the effect of the stammer on the person’s ability to do the job makes dismissal a proportionate response.
Fitzpatrick v British Railways Board  1IRLR 376, Court of Appeal
When the claimant obtained a job with British Rail, she had deliberately failed to provide full details of her previous employment or disclose her former participation in trade union activities. When the employer found out about her previous union activities she was dismissed. The employer said this was because she had obtained the job by deceit. She claimed unfair dismissal. To claim this (because she did not have the required two years qualifying employment) she needed to show that the reason, or principal reason, for her dismissal was trade union activities. The Court of Appeal said that if the deceit had been the primary reason for her dismissal, the primary reason would not have been trade union activities. However, the industrial tribunal had held that it was her trade union activities which were the prime reason for dismissal. Accordingly her claim succeeded.
Three comments on that case:
- As in the Fitzpatrick case, in a disability claim the tribunal may well hold that it was really the disability (or capability as a result of the disability) that was the reason – or at least ‘a’ reason – for the dismissal, even though there was deceit. Accordingly there could be a claim for direct discrimination or ‘discrimination arising from disability’.
- Unlike in that case, under the Equality Act the disability does not have to be the principal reason for dismissal. It is sufficient that the disability had a significant influence on the decision to dismiss – or, for a claim under s.15 EqA, that the “something arising in consequence of” the disability, eg communication ability, had a significant influence.
- Even if deceit were the main reason for dismissal, under the Equality Act there would be question of whether it could nevertheless be eg direct discrimination or ‘discrimination arising from disability’.
O’Brien v Prudential Assurance Co  IRLR 140, Employment Appeal Tribunal
The claimant was dismissed from his job as district agent when it was discovered he had a long history of mental illness. He had not mentioned this when applying for the job, despite being asked specific questions on mental health. The employer had a policy of not appointing as district agents people with long histories of serious mental illness, because the job involved going into people’s homes. His dismissal was held to be fair.
Comment: This is an old case where the tribunal considered the employer’s policy of not appointing people with a background of mental illness to be reasonable. Accordingly, despite there having been deceit, the tribunal very much took into account whether the person was fit to do the job. A tribunal nowadays is likely to be less sympathetic to such a blanket ban on people with a history of mental disability. Also, the case is before disability discrimination legislation was introduced.
There are rules restricting how far employers can lawfully make pre-employment enquiries on health/disability. If the employer’s question about disability was in breach of those rules, one would expect that to strengthen the claimant’s case – but the technical postion would need to be researched.
Compensation claim by employer?
If the employer asks a question on disability and the job applicant answers it falsely, the Cheltenham case below suggests that the employer may be able sue for damages (if it suffers any). However, a claim by the employer for compensation is likely to be very rare in practice.
Cheltenham Borough Council v Laird, High Court, 2009
A job applicant did not reveal a mental health history in response to a questionnaire of the employer. She was appointed to the job, and the employer subsequently sued for damages. Its claim failed since the court held her answers had been accurate, given the wording of the questions asked. However, the case indicates that similar claims might succeed in future.
Since that case, rules have been introduced restricting how far employers can lawfully make pre-employment enquiries on health/disability. Also, a compensation claim would presumably not succeed if failure to appoint a person who had disclosed the disability would have been a breach of the Equality Act.
In Y v Calderdale Council, a case about stammering, the tribunal commented that it is not uncommon for a disabled applicant for a job to minimise, on the application form, the extent of his/her disability so as to increase his/her chances of being shortlisted. The applicant had told the tribunal: “In the past my experience has been that if I’ve requested adjustments I have not been shortlisted.”