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M v Mitie Aviation Security

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Last updated 2nd September 2017 (part update 7th January 2021).

A claimant who spoke fast, and may or may not have had cluttering or a stammer, was held not to have a disability within the Equality Act.

Employment tribunal, June 2017. Full decision: gov.uk.

The claimant had a speech disorder manifesting as fast speech. A speech and language therapist suggested it was perhaps ‘cluttering’ or a stammer. The speech patterns had been a lifelong factor in his life. He claimed direct discrimination and failure to make reasonable adjustments under the Equality Act.

The claimant’s evidence was there had been no problem with his speech until the employer mentioned it in 2015. The employer’s response to his tribunal claim (ET3) said that he was given coaching by his manager and was offered a course on his manner of speaking. A colleague gave evidence that his “stammer was not an issue before, he only speaks fast, but with his experience in different roles he was able to mentor other members of staff and make them have opportunities”. Having listened to the claimant give evidence, the tribunal commented that his speech was quite intelligible, the tribunal was able to understand what he said, but he speaks fast.

He initially also claimed discrimination because of ‘perceived’ disability. This would mean he did not have show he had an actual disability. However he dropped this argument.

Held: He did not have a disability within the Equality Act definition. The employment tribunal accepted that he had an impairment with a long-term effect. The question was whether it had a substantial effect on his ability to carry out normal day-to-day activities. The union rep representing the claimant relied on the employer’s ET3 for this. The union rep argued there was an impairment and referred to the effect in terms of the manner of the alleged treatment.

My comment

It is not evident from the tribunal decision that he had difficulties getting words out, as one would expect with a stammer. As regards Covert stammering, it may have been that but cluttering is more than just fast speech.

Perhaps it was simply fast speech, and perhaps the employer decided in 2015 it was not happy with that way of speaking. One can understand why a tribunal might decide there was no substantial effect on normal day-to-day activities, he just had a particular manner of speaking.

Even so there are further arguments which (subject to the precise facts) could have been raised to argue the claimant had a disability within the Equality Act. Nearly any work activity is a ‘normal day-to-day activity’ within the meaning of they Act. It sounds very possible that the claimant’s impairment meant he could not perform speaking activities at work in a way acceptable to the employer. We don’t know the detail of this particular case. However, for example, maybe in some types of situation fast speech could be difficult for some people to follow, or a company might feel it does not want to be represented to the outside world by someone speaking in a particular way. A claimant might well be able to argue that inability (because of a long-term impairment, which the tribunal accepted this was) to carry out work activities in a way acceptable to the employer is a substantial effect on ability to carry out normal day-to-day activities – namely the work activities which the employer considered unsatisfactory.

This argument could be bolstered by citing the EU court decision in Ring (see My comment on Ring). This decision brought attitudinal barriers (the ‘social model’) into the EU definition of disability, drawing on the UN Convention on Rights of Person’s with Disabilities. This EU definition of disability is still developing. It continues to be relevant in UK courts after Brexit.

The M v Mitie case is in some ways reminiscent of Lothian and Borders Police v Cummings, which held that failure to progress professionally is not a relevant effect. In that case a special constable had impaired vision in one eye, and so did not meet the requirements to progress to being a special constable. The court held the impairment was not a disability as it did have the required effect on normal day-to-day activities. However this decision has since been thrown into doubt by the Sobhi case in which the court held that even a one-off job application could be a normal day-to-day activity, in the light of EU cases. On both the Lothian and Sobhi cases, see Normal day-to-day activities>Specific job applications as a normal day-to-day activity? So the eye impairment in the Lothian case might now be seen as a disability even if it had no effect on ability to do the job. In any event the argument for there being a disability in a case such as M v Mitie seems stronger than that, in that the employer may have seen the fast speech as impairing ability to do some work activities in a satisfactory manner.

These arguments were not considered by the tribunal. They may not have been argued before it.

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