The tribunal refused to allow a claimant to amend his claim to add disability discrimination related to stammering. From listening to him, the tribunal said there was a “discernible, very mild stammer” which the tribunal very much doubted was a disability. In any event, the sheer weight of evidence explaining the rejection of his job application on the basis that he just did not demonstrate the right competencies, showed that any stammer played no effective role in the employer’s decision.
Employment tribunal, June 2020. Link to the full Employment Tribunal decision (gov.uk).
The claimant applied to British Airways for a role as a Spanish speaking customer service representative. He was rejected after an interview and role play secenarios.
The tribunal said it was a “very comprehensive fail” of the interview and role plays. Also his past experience was not the sort of background from which one might predict suitability as a Customer Relations Person at Heathrow Airport.
Held: his age discrimination claim was struck our as having no reasonable prospect of success. Also he was not allowed to amend his claim to include disability and race discrimination.
His original claim was for unlawful age discrimination contrary to the Equality Act. The tribunal struck out this claim as having no reasonable prospect of success. Five of the 29 people who got the job were aged over 50, and the employer had an explanation for why the claimant did not progress. There was nothing in the scoring to suggest that age played any role whatsoever, and the claimant’s career history did not suggest suitability for the role.
Disability discrimination: stammering
The claimant also asked the tribunal to exercise its discretion to amend his claim to include
- disability discrimination in respect of his stammer, and
- race discrimination in respect of his French accent.
In both cases the tribunal refused. As regards the stammer the tribunal said:
22. The Claimant essentially floats a disability discrimination possibility and he floats a race discrimination possibility. As to alleged disability: he does have a very mild stammer. I have been listening for two hours or so to the Claimant today, and there is a discernible, very mild stammer. I doubt very much it amounts to a disability. There is reference in the notes [of the assessors in one of the role plays] on communication about struggling to articulate. I do not understand that as being a reference to a stammer. It is a reference to struggling to explain how he would handle the scenarios. Even if there was an inkling of a stammer being relevant to this, the sheer weight of other evidence explaining this decision on the basis that the Claimant just did not demonstrate the right competencies for the job, show that any stammer played no effective role in this decision.
23. It is clear why the Claimant did not get this job. He did not demonstrate the competencies relevant to doing it. On my analysis of the evidence, there is nothing to do with his very mild stammer. In any event, this application made very late (sic). The Respondent [ie the employer] is already taking time points about the original claim. This extremely thin argument was not made in a prompt application to amend. There is insufficient cogency, there is insufficient prospects of success (sic) to allow this. There is no evidential basis for a prima facie case first, that the Claimant is disabled; and secondly, that a stammer contributed to this decision. Accordingly, the balance of hardship falls on the side of the Respondent. It should not have to resist an unmeritorious claim.
Whether there was a disability
The tribunal did not actually decide whether the stammer was a disability. If the issue had gone to a full hearing, presumably the claimant would have given evidence of how he saw the stammer as having a substantial effect on normal day-to-day activities, including any hidden effects, and perhaps with the addition of expert evidence from a speech and language therapist.
It is common for people who stammer to try to hide their stammer as much as possible, for example by switching words. Indeed some hide it to such an extent that people around them do not realise they have a stammer, or the stammer may just appear very mild because so much is hidden. See Hiding the stammer>How people hide.
Hidden effects can be relevant towards a stammer being a disability within the Equality Act: Hiding the stammer. In this case, however, it appears the claimant had not presented any evidence of hidden effects of the stammer nor it seems (if he wanted to bring evidence of these) had he explained to the tribunal that he wanted to do so. The case was unusual in that he had not claimed disability discrimination in his initial tribunal claim, hence the need to apply for permission to add it late. Normally disability discrimination will be part of the initial claim – so issues of permission will not arise and, if the employer disputes whether there is a disability, the claimant will produce evidence of having a disability in the normal course of the case. Here the tribunal says “The Claimant essentially floats a disability discrimination possibility”, which sounds like the claimant was pretty vague.
Apart from hidden effects, there may – or may not – have been other situations where his stammer was more severe than in the tribunal hearing. Or it may have been a “good day” for him. Perhaps the tribunal should not have put so much weight on how he sounded in the tribunal if he had not yet had an opportunity to present evidence of what difficulties he did have. The EAT in Goodwin v Patent Office said:
The tribunal may, where the applicant still claims to be suffering from the same degree of impairment as at the time of the events complained of, take into account how the applicant appears to the tribunal to “manage”, although tribunals will be slow to regard a person’s capabilities in the relatively strange adversarial environment as an entirely reliable guide to the level of ability to perform normal day-to-day activities.
However an important part of the tribunal’s decision was that the tribunal was convinced that whether or not his stammer was a disability, the sheer weight of evidence explaining the rejection of his job application on the basis that he did not demonstrate the right competencies, showed that any stammer played no effective role in the employer’s decision (see next sub-heading).
If there had been a disability…
The most obvious possible claims would be discrimination arising from disability under s.15 EqA, and reasonable adjustments.
As regards s.15, the first question would be whether the claimant was rejected because of (at least in part) something arising in consequence of the stammer. The tribunal here seems to have thought he was not, though any arguments of hidden effects of the stammer impacting his scores could be relevant.
Even if the claimant succeeded on that, the employer would have a defence to the s.15 claim if it showed that:
- rejecting him was objectively justified, ie a “proportionate means of achieving a legitimate aim”. It sounds like the tribunal may well have been inclined to find that the employer was justified in rejecting him here; or
- the employer did not know, and could not reasonably have been expected to know, that he had the disability: see Knowledge of disability.