The tribunal found the claimant was disabled within the Equality Act, by reason of her stammer and depression. However it held there was no discrimination, so her claim failed overall.
2021, Employment Tribunal. Full decision (pdf, gov.uk). (There are also earlier decisions (gov.uk) on applications to strike out the claim.)
Facts
The claimant was employed as a chef in a hotel. Some issues arose which were resolved. Finally there was an incident where the claimant felt the head chef and a colleague were talking about her behind her back. This led to heated exchanges, and her slamming a scrap of paper on the manager’s desk saying she had been forced to leave and would see them in court.
Held: the tribunal held that the claimant was disabled within the Equality Act by reason of her stammer and depression. However there was no discrimination, so overall the claim failed.
Stammer held to be a disability
“Impairment”
The tribunal was satisfied that “the claimant had a physical impairment in the form of her stammer/speech impediment”, as well as a mental impairment in the form of depression. (para 10-13)
Adverse effect
The tribunal held that the stammer did have an adverse effect on normal day-to-day activities:
14. The Tribunal accepted the claimant’s evidence that her speech impediment had an adverse effect on her ability to communicate. She avoided using public transport and experienced difficulty using the telephone. That was why, she often had to use written means of communication such as Facebook messages.
Effect was “substantial”
Was this effect “substantial”, ie more than “minor or trivial”? The tribunal held yes it was.
The employer’s solicitor referred to the claimant’s job application in which she advised the employer that she had “a slight stammer”. However, the tribunal “accepted her evidence that she was fearful of not being considered for the job had she advised that her stammer was more significant.”
One of the employer’s witness said that when the claimant worked for her, the stammer was much less pronounced than it was when the claimant gave evidence to the employment tribunal. However the tribunal said it was clear that stress exacerbated her stammer. (para 10, 16)
As to her GP medical records (para 17):
- Medical records from December 2016 recorded that she had “a bad stammer”.
- In August 2013 she was recorded as having, “communication difficulties and has written everything down on paper”.
- In June 2011 she was recorded as having a “severe speech impediment causing severe communication difficulties”.
The tribunal said that although these medical records were somewhat historic and the claimant had not been prepared to engage in speech and language therapy, the tribunal was satisfied that there had not been any material improvement in the claimant’s impairments since then. (para 11, 17)
The tribunal also considered evidence on the effects of the claimant’s depression. On the basis of the claimant’s own evidence and the medical evidence, the tribunal was satisfied that her impairments had a significant effect on the way the claimant conducted herself and could not be described as “minor or trivial”. There were therefore “substantial” (EqA s.212(1).
Also it was clear that her impairments had lasted for more than 12 months, so they were “long-term” (para 19). She was therefore disabled within the Equality Act (para 20).
Discrimination claims failed
The tribunal rejected all her allegations of disability discrimination. It held for example that some things had not happened in the way alleged, or were not tainted by discrimination. Also the claimant had not been dismissed but left of her own accord.
Credibility of evidence
The tribunal considered the employer’s two witnesses were credible and reliable, whereas the claimant was not in certain material aspects of the case (para 97).
The tribunal had arrived at this view “mindful of the claimant’s speech impediment and her obvious difficulty communicating”. However she had no such difficulty when it came to recording her evidence in her written witness statement, with the assistance of her solicitor. Despite this one paragraph of her written statement was untrue, said the tribunal, by her own subsequent admission (para 98). The tribunal also gave further reasons why it considered some of her evidence not to be credible or reliable (para 99-102).
My comments
The tribunal could have decided she had a disability based on the cumulative effects of the stammer and depression: “Substantial effect”>Cumulative effects. However the tribunal did not mention combining the effects, and it looks like the tribunal would have decided that even the stammer alone was a disability within the Equality Act.
It’s interesting and welcome that the tribunal seems to have tried to compensate for effects of the claimant’s stammer when – nevertheless – finding that parts of her evidence were not credible. On stammering being mistaken for dishonesty, see the Australian case of Coombe v Bessell and Appearing in court>Mistaking stammering for dishonesty. Since February 2021 the judges’ official Equal Treatment Bench Book also warns of this possibility.
