The employment tribunal found that the claimant’s stammer was not a disability within the Equality Act. The burden of proof was on the claimant, and he had not presented sufficient evidence to show that his stammer had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. That was supported by the tribunal’s observation of him in the video hearing, where he stammered very little. My comments are below, including criticism that the tribunal failed to take into account the impact of the stammer on job interviews.
2023, Employment Tribunal. Full decision (gov.uk).
Facts and evidence
M claimed for disability discrimination and race discrimination. The disability discrimination claim related to his stammer. This decision was considering whether his stammer was a disability within the Equality Act (EqA).
As to documentary evidence put forward by the claimant:
15. …No medical records were provided other than a document which purports to be the claimant’s medical records. That document referred to the claimant saying that he has a moderate stammer and referred to problems with trying to express himself when he was trying to get employment …
16. The documents consist of a psychological report which was produced in 2004 …, which almost entirely relates to the claimant’s problems with dyslexia. There are very few references to his stammer. The only reference appears to be at page 67, where it says that the claimant was having problems with speaking and is still hesitant with words.
17. The claimant has also produced a report from DWP made by Access to Work in 2013. That report says that the claimant was provided with a voice amp. The claimant in his evidence said that he would not have got that equipment if they did into consider him to be disabled.
18. Other documents included within the bundle include confirmation of an attendance by the claimant on a Speech Therapy Course in November 2018 … The speech therapist said that the claimant had a mild to moderate stammer and referred to him saying he had problems communicating on the telephone.
19. The claimant has also provided details of the Warrington stammer support group which he said in evidence he attended.
Witness statement and oral evidence
In his witness statement, including disability impact statement:
- The claimant referred to having difficulty conversing on the telephone. In relation to this, he focused substantially on problems getting a job or contacting recruitment agencies. In his statement there were a number of paragraphs dealing with those issues, which appeared to be the principal matter on which he relied. (§22)
- The claimant referred to problems on the telephone in ordering takeaway food, but said he now used the Uber app which made it easier. (§23)
- He referred to problems communicating in the office environment. (§24)
- In his witness statement, and also in oral evidence, he referred to problems speaking to his children, and said that they were unaware of his stammer. The claimant said that he had difficulty sometimes speaking to them when he was trying to reprimand them, and he had problems communicating with them. (§25)
- The claimant referred to having problems talking to his parents on the telephone, particularly in Punjabi. He said that he principally now tried to speak to them in English which was his first language. The claimant also referred to problems at the outset of his relationship with his wife in speaking to his in-laws over the telephone. (§25)
- He referred to difficulties he had in interviews which he said he found stressful. (§26)
- He referred to difficulties in shopping. He referred to shopping in Asda and another store, but provided no specific details of incidents in which he outlined any difficulties he had encountered, or when they had occurred. (§27)
The tribunal said the main issues that came out of the claimant’s witness statement were the difficulties that he had in an interview situation. (§28)
In cross-examination, the employer’s solicitor asked the claimant whether the principal problems related to difficulties on the telephone. He said that he equally had difficulties with face-to-face communication and on video. The claimant said that the difficulties were often when he was placed in a stressful situation, and again referred to the situation with regard to interviews. (§29)
Tribunal’s observations of claimant speaking
The tribunal took into account its own observations of the claimant in giving his oral evidence and when making oral submissions, during the video hearing of this case. The claimant did this from his own home. The judge said the claimant appeared relaxed and rarely stammered. The claimant “was in fact an extremely articulate and fluent witness and advocated articulately on his own behalf during his submissions. He rarely hesitated over words and indeed at times he was as articulate as the [employer’s] representative who was a solicitor. The Tribunal only noted that the claimant hesitated at most once or twice over the course of his evidence. In the Tribunal’s experience it is not usual for a witness to hesitate at times. The claimant did not hesitant anymore and probably less than most claimants when giving his evidence.” (§30-32)
The tribunal noted that the claimant stammered a little more during the course of his oral submissions. However again he very rarely stammered during these, which lasted for over ten minutes. (§33)
The tribunal noted that giving evidence is not a normal day-to-day activity but is, for most people, a very stressful situation. (§34)
Held: His stammer was not a disability within the EqA.
The tribunal said the burden of proof was on the claimant to show he had a disability within the EqA. The claimant had failed to discharge this burden of proof. He had failed to provide sufficient evidence that his stammer amounted to a disability (§35-36). In particular:
- The claimant provided no medical evidence of note, other than a very limited comment about what he had told the doctor, with no indication of when that was said or any follow-up which may have ensued. (§37)
- The main thrust of the evidence contained in his witness statement (and indeed orally) was about the impact around interviews and the recruitment process, which was not a normal day-to-day activity. (§38)
[Comment: I believe there is a strong argument that job interviews are normal day-to-day activities, so that the impact on these was relevant: below Comment: Job interviews.]
- His reference to problems on the telephone, in particular to ordering takeaway food, was limited, as was his evidence relating to any difficulties within his family and in shopping, because he failed to provide any details or examples, particularly around the time of events for which he is claiming. (§39)
- The tribunal had noted from its own observation of him giving evidence and making oral submissions – in what would normally be a very stressful situation, in which the claimant in his own evidence suggested he was more likely to stammer – that the claimant did not in fact stammer at all, or so little that it was hardly observed by the tribunal. The tribunal could not think of a more stressful situation than having to give evidence before a tribunal. (§40-42)
The tribunal accepted that in many cases a stammer may well amount to a disability. However, to be a disability under the EqA the stammer had to have a substantial and long-term adverse effect on the claimant’s ability to undertake normal day-to-day activities. The tribunal’s observation was that this was not the case here, and the evidence produced was not sufficient to establish that his stammer (which the tribunal hardly noticed) had any substantial or adverse effect on this ability. (§43-46)
Accordingly, the claimant’s claim for disability discrimination was dismissed. (§47)
Essentially, the tribunal found that the claimant had not presented sufficient evidence to show that his stammer had a substantial (meaning “more than minor or trivial”) and long-term adverse effect on his ability to carry out normal day-to-day activities, so as to be a disability within the EqA. Clearly, bringing enough evidence that one’s stammer meets the requirements to be a disability is important, if this is disputed. See Proving disability: impact statements and expert reports.
As well as my points below, there are various indications in the tribunal decision of how it felt the evidence fell short, such as – in the witness statement – the lack of any details or examples, particularly around the time of events for which he was claiming. For example regarding alleged difficulties in shopping, he provided no specific details of incidents in which he outlined any difficulties he had encountered, or when they had occurred.
Comment: Job interviews
The tribunal says the main thrust of the claimant’s evidence was about the impact of his stammer around interviews and the recruitment process. The tribunal says – without giving reasons – that this was not a normal day-to-day activity. The result would be that the impact of the stammer in these activities was not relevant to whether it was a disability within the EqA.
However there seems to be a strong argument that job interviews are normal day-to-day activities in the context of an employment claim: ‘Normal day-to-day activities’: Recruitment and promotion. The same applies to giving a presentation, or probably other parts of a recruitment or promotion process which involve speech. This is based on EU law, the effect of which in this area continues after Brexit.
As a litigant in person, the claimant evidently did not raise this argument. Accordingly the tribunal does not seem to have considered it, nor whether the claimant’s evidence showed the effect of his stammer in this area to be more than minor or trivial.
Paterson v Commissioner of Police of the Metropolis, Employment Appeal Tribunal, 2007
The EAT held a high pressure written exam for promotion was a normal day-to-day activity within the Disability Discrimination Act 1995. The claimant had dyslexia, and was held to have a disability, despite the high quality of written work he had produced as a chief inspector.
The EU definition of disability focused on whether the impairment hindered participation in professional life. The British definition of disability had to be read consistently with that, said the EAT, which could be done simply by giving a meaning to day-to-day activities which encompasses the activities which are relevant to participation in professional life.
Sobhi v Commissioner of Police of the Metropolis, Employment Appeal Tribunal, 2013
The EAT held that applying to become a police constable was a “normal day-to-day activity” in the light of EU law. A memory impairment which led to the claimant not disclosing a previous conviction had a long-term adverse effect on such an application, and was a ‘disability’ within the DDA 1995.
Comment: Hiding the stammer
There are indications, but evidently not clear enough evidence for the tribunal, of the claimant taking significant steps (avoidance strategies) to hide his stammer. These might include switching words, and deciding what to say, whether to speak and how much to say based on trying to avoid stammering. He may have been doing this to a large extent generally, not just in the areas where he said he had problems. The areas he mentioned as problematic may just have been where, even with his avoidance strategies, he struggled to stay fluent. However if so, the claimant did not bring evidence of it. As to hidden effects such as these being taken into account, see Hiding the stammer. (Expert evidence, below may be particularly helpful if relying on hidden effects.)
In particular, the claimant says his children were unaware of the stammer. I would imagine this implies that his interactions with his children were being conditioned, to a greater or lesser extent, by steps he took to try and hide his stammer from his children. Again, it is not clear whether the effects were largely limited to when he wanted to reprimand them, or whether reprimanding was just the main situation where his avoidance strategies were liable to break down. In any event, the tribunal felt he had not given enough evidence.
There is clear, though limited, evidence of hiding the effects of the stammer (avoidance) through using an app rather than the phone to order take-away food. Also he tended to avoid speaking to his parents in Punjabi, where he stammered more.
Comment: Observations of tribunal
The claimant said his difficulties were often when he was placed in a stressful situation. The tribunal said it could not think of a more stressful situation than having to give evidence before a tribunal, and the claimant had stammered very little when doing so, in the video hearing.
The EAT said in Commissioner of Police of the Metropolis v Ekpe, 2001 that it would expect any tribunal considering whether to draw a conclusion from behaviour in the hearing to raise that possibility at the hearing, so that it could be dealt with. It said the tribunal should bear in mind that behaviour before a tribunal may not be representative of behaviour generally. For example, In the case of some conditions, there may be “good days and bad days”. Even so, the EAT did not see the failure to raise this in the hearing as an error of law in Ekpe.
The tribunal in the present case does not mention having raised with the claimant how fluent he was in the hearing, and that it saw this as potentially cutting across his evidence that he stammered more often in stressful situations, since the tribunal saw the hearing as very stressful. (The tribunal does record at §33 that the employer’s representative asked the tribunal to take account of the claimant’s demeanour during the course of the hearing.) Certainly with stammering there may be good and bad days. Or there may be reasons why, for example, the claimant – doing a video call from home – did not see this as a particularly stressful situation, or did not stammer much for some other reason. We don’t know, nor did the tribunal really.
Also we do not know how much the claimant was adapting what he did and didn’t say in the hearing, to try and stay fluent: above Hiding the stammer.
I think a lesson is to bear in mind that a tribunal may well draw conclusions from how one speaks before the tribunal, and to expressly address this in evidence if one sounds pretty fluent.
Comment: Medical/expert evidence
Medical/expert evidence – such as from a speech and language therapist – is not necessarily needed but can be very helpful, including where the claimant is relying to a significant extent on hidden effects (above) of the stammer: Proving disability: impact statements and expert reports>Expert evidence.
Comment: Electronic fluency device
Voice Amp, mentioned in the decision, is an electronic fluency device. On that and other apps and devices, see the BSA website Apps & fluency devices (stamma.org). The effect of fluency devices is discounted in deciding whether one has a disability under the EqA: Discounting speech techniques etc.
- Proving disability: impact statements and expert reports
- “Substantial effect” – I’m in the course of updating that page.