The EAT considered a case where stuttering was one of the symptoms of a mental impairment.
Employment Appeal Tribunal, 2006. Full judgment: bailii.org.
The claimant was employed by an NHS Trust. In November 2002 she was suspended from work following an incident involving a patient. In March 2003, her GP noted her ‘low mood’ but that she was ‘not depressed although this remains a danger’. At the end of that month he prescribed medication. In early April someone from the Occupational Health Division of the employer saw the claimant at her home and noted that the claimant’s speech had deteriorated, and that her GP was actively involved. Later the same month April the claimant saw her GP who noted the claimant’s low mood and that she was ‘better but still stuttering somewhat’. In May a medical certificate signed the claimant off work, and a disciplinary hearing relating to the November incident was postponed. The following September, the claimant was admitted to a psychiatric unit due to depression, and in October a disciplinary hearing proceeded in the absence of the claimant but in the presence of her daughter.
The claimant was informed by her daughter that the result of the disciplinary proceedings against her was that she was to receive a final written warning and that she was not to be involved in a post involving direct patient care. In November 2003, the claimant was discharged from the psychiatric unit. On 26 November, the Occupational Health Department of the Trust wrote to the claimant setting out the Trust’s plans to enable her to return to work: occupational therapy would establish the claimant’s skills; sick pay would be extended; Human Resources would supply details of suitable roles to occupational health; the latter would consider whether those roles were suitable; and the Trust would aim to achieve a phased return to an identified and suitable role.
The employment tribunal decided that the claimant was disabled within the DDA, and that the Trust had an obligation to make reasonable adjustments, as set out in its 26th November letter to her. The steps in the letter simply had not happened in practice, so the Trust was in breach of the DDA.
Held by the Employment Appeal Tribunal: the employment tribunal was entitled to come to the decision it did.
The Trust seems to have argued that the Trust did not have to do what its 26th November letter said. The EAT said, however, that in considering whether the employment tribunal was quite clearly entitled to consider that the approach in the letter was reasonable, it must not be forgotten that the tribunal had found that the claimant’s mental impairment had an adverse effect on her ability to carry out day-to-day activity. For example:
“It had noted that the obvious impact of the mental impairment on the claimant has been on her speech in that it took the claimant “significantly longer than average to verbally communicate both at the time of the events considered by the Tribunal and now”. It was pointed out by the Employment Tribunal that the stutter from which she suffered from at the time was significant and had a substantial adverse effect on her speech and her ability to carry out normal day-to-day activities.”
Furthermore, the mental impairment had an adverse effect on her memory and ability to concentrate with ‘a short attention span’; and the claimant, who had lost the ability to sustain activity over a reasonable period, needed constant support from a close network of friends to deal with her own affairs and her day-to-day activities.
“All these impairments would have meant that careful inquiries would have to have been made by the Trust concerning the work which the claimant might have been capable of doing before seeking to identify a suitable post for her in a hospital environment in which an ability first to communicate orally with out difficulty and second to concentrate would have been requisite qualifications for many jobs.”
Against that background, the proposals in the Trust’s letter were eminently reasonable, especially if it was borne in mind that the steps in the letter would have to be looked at sequentially so that first the Occupational Therapy Department would establish what skills the claimant had available, then the Human resources would supply details of suitable roles to the Occupational Health Department, who would then consider whether those roles were suitable so she could then achieve a phased return to work in an identified and suitable role.
Looking at what the Trust had actually done, the employment tribunal had been entitled to find it had not made reasonable adjustments. For example the tribunal had found that her roles in various placements were not spelt out, and no checks were made with occupational health to assess whether any particular role was appropriate. Even the first step in the 26th November letter, namely Occupational Therapy assessing her skills, had not happened.
The claimant seems to have had one or more competitive interviews for jobs with the Trust. The Trust argued that the employment tribunal erred when it stated that that competitive process would place the claimant at a substantial disadvantage. The EAT disagreed (also saying it would make no difference to employment tribunal’s decision even were if the Trust were right):
“The Employment Tribunal had seen the claimant and was concerned about her ability to communicate orally and to concentrate as these limitations were part of her disability. These problems would have placed the claimant at a great disadvantage and so the Employment Tribunal was entitled to comment as it did.”
One could read the EAT decision as taking a rather too negative view of the abilities of someone who stutters. It talks in terms of the “hospital environment in which an ability … to communicate orally with out difficulty … would have been requisite qualifications for many jobs” – so that “careful inquiries” would be needed to identify a suitable post. It also says that her problems with speech and concentration would have placed her “at a great disadvantage” in competitive interviews. However this very much depends on the individual case. There are doctors and nurses who stammer. The claimant’s communication skills and degree of speech impairment in this case is not clear – and her mental impairment had other effects as well. One must always look at the particular individual’s abilities. Hopefully the Occupational Therapy dept would have done this had she been assessed. In any event, the EAT’s decision too was presumably based on the particular symptoms of the claimant.
In deciding that the stutter had a substantial adverse effect, the Employment Tribunal evidently applied the bullet point example in para C12 of the 1996 Guidance on definition of disability. This says that it would be reasonable to regard as having a substantial effect: “taking significantly longer than average to say things”. The equivalent wording in the current, 2006 Guidance is: “taking longer than someone who does not have an impairment to say things” – see Substantial effect>Time taken.