Home » N v Packaging Automation: need for evidence of disability

N v Packaging Automation: need for evidence of disability

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Last updated 18th November 2021.

A worker with a stammer was dismissed and claimed disability discrimination. The tribunal held he did not have a disability within the Equality Act. Colleagues said his stammer sounded only slight. The tribunal acknowledged that a stammer may also have hidden effects. However in this case the tribunal did not have sufficient evidence that the stammer had a more than minor or trivial adverse effect on his ability to carry out normal day-to-day activities. (This decision highlights the need to present adequate evidence of disability.)

2021, Employment Tribunal. Full tribunal decision (gov.uk).

Summary of my comments

My fuller comments are below in My comments. However some key points:

  • The tribunal was clear from the new (February 2021) coverage of stammering in the Equal Treatment Bench Book that stammering may have substantial hidden effects, even if a person sounds largely fluent. Below Equal Treatment Bench Book.
  • However the tribunal seems not to have had sufficient evidence of real-world hidden effects to be able to find the claimant here had a disability. Claimants should ensure they present the best evidence they can that their stammer meets the Equality Act requirements for being a disability, if this is disputed. A report from a speech and language therapist specialising in stammering may be helpful, especially if effects are hidden. Below Lack of evidence.
  • The claimant’s feelings around his stammer were not in themselves a relevant effect on normal day-to-day activities, but in practice these feelings will usually affect the person’s behaviour in various ways. Below Effect on claimant’s feelings not enough.
  • Importantly, the claimant might have argued that the tribunal should discount the effect of various techniques from his speech and language therapist which he was using, and should look at whether his stammer could well have the required more than minor or trivial effect were he not using the techniques. Below: Discounting effect of speech therapy techniques.

Stamma response

Stamma (the British Stammering Association) has issued a Press statement (mynewsdesk.com) in response to this tribunal decision. Among other things it encourages people bringing stammering discrimination claims to get a report from a speech and language therapist, and seek legal advice and work with Stamma to prepare appropriate evidence of the impact of their stammer. “This way future judgments can reflect the reality of the lives of people who stammer.”

Facts

The claimant was a store assistant. This involved booking in items purchased, picking and arranging dispatch of items ordered, and gathering parts (kitting) so they would be ready for assembly. He was dismissed in relation to a particular incident, of which the tribunal decision does not give details. (para 23 & 27)

He claimed disability discrimination. This decision related only to whether his stammer was a disability within the Equality Act. The employer accepted his stammer could be a physical or mental impairment, and was long-term. So the issue was only whether it had a substantial (ie more than minor or trivial) adverse effect on his ability to carry out day-to-day activities. (para 8-10)

The claimant confirmed that his only disability complaint related to the “stammering or stuttering condition”. His reference to “anxiety” in his claim form related to the effect the condition of stammering/stuttering could have on his mental health. (para 10)

Evidence of the claimant

The claimant had stammered since childhood. He said that because other male members of his family, including his father, also had a stammer, it was not really noticed by his family or friends as he was growing up. However when he began a mechanical engineering course at college in 2010, his tutor noticed a stammer and suggested he could go to his GP.

The claimant produced an impact statement (stating the impact of his stammer on normal day-to-day activities) and gave oral evidence to the tribunal. He produced only limited medical information, namely a letter from his GP confirming he had had a stammer for many years and underwent treatment with a speech and language therapist in 2010. (para 18)

The claimant had a number of sessions with the speech therapist, but was eventually discharged and told his stammering amounted to a lifelong condition. “His therapist spent some time helping him develop strategies to limit the effect of the stammering and the claimant confirmed that he used the prescribed strategies which included practising talking into a mirror, talking with headphones on and learning to pause before he spoke in order that he could gather the necessary words and speak clearly without any stammering taking place.” (para 19)

He said he had managed the stammer reasonably successfully since the treatment 10 years ago, but was aware it was something that would not go away, and this could cause him anxiety. He also said that when he became anxious, it became much more difficult for him to deploy his strategies and for him to avoid stammering. Anxiety could also be induced by certain situations which he found stressful and he said that this made his strategies less effective and his stammering could reappear. (para 19)

In his impact statement the claimant provided little evidence of how he was adversely affected in day-to-day activities other than those relating to work. The claimant also said that the stammer could cause him to have “…difficulties with understanding, writing, sequencing, order and concentration”. He also made reference to avoidance strategies and that he could overact if frustrated.

The claimant had been to university, but found the degree increasingly difficult from the second year. He left in the third year without taking his degree. The tribunal did not hear evidence that his stammer had contributed to his decision not to complete his course.

The claimant gave evidence concerning those parts of his role which he found particularly difficult. He said that three activities were particularly difficult and he struggled to perform them (para 18):

  • making phone calls to obtain spares, which he said was particularly challenging when dealing with someone whom he had not spoken to before
  • interacting with other colleagues at the workplace who came to the store seeking parts. He said he found this difficult, especially as he found his workplace noisy and he could become overwhelmed and angry
  • all members of staff had to attend a daily meeting where they would take it in turns to present performance information from a whiteboard to other members of staff, normally including members of the management team. The claimant said he had to do this every few days and it was a source of particular anxiety. He felt that “…I wasn’t coming over clear enough to other staff”.

Evidence of other staff

The tribunal heard evidence from seven members of staff, ranging through management, colleagues working in stores, and people who would visit him in stores. (para 23 & 25)

They said the claimant’s speech could involve pauses, and his stores colleagues all confirmed that from time to time there could be a slight stammer. However, none of them said that it was particularly noticeable or caused particular difficulties in communication. His line manager acknowledged that he noticed a slight delay in the claimant speaking, but never felt a speech impediment was present, and he had never seen the claimant anxious or angry. If anything, he could be “pretty laid back”. The line manager did not witness any evidence of him struggling at work. The lack of evidence that his speech impediment was noticeable or affected his work in any significant way was supported by evidence from his other stores’ colleagues. (para 24-25)

As regards the meetings, all his stores colleagues found speaking at the daily meeting to be anxious, but they did not accept that the claimant came over poorly when speaking. On balance the tribunal accepted that this was the case, even though the claimant was worried about how he spoke when it was his turn to present. (para 25)

The claimant said background noise could be an issue which affected his stammering. However the HR manager was clear that the warehouse where he worked was noisy and she was not aware of any occasion where he had become overwhelmed. This belief was supported by evidence from other work colleagues. (para 22)

The tribunal commented that the claimant was clearly anxious about his condition and the effect it might have upon his ability to communicate, together with the possible reaction that he might get from work colleagues and customers. However it appeared that he was able to continue working and perform the tasks he described, including the three tasks he said caused him the most difficulties. In relation to those matters there was no evidence to suggest that work colleagues, or indeed customers, found the claimant difficult to understand or found it difficult for him to perform his job. (para 26)

Employment Tribunal decision

Equal Treatment Bench Book

The tribunal summarised and quoted at some length from the Equal Treatment Bench Book about stammering. For example, the tribunal made the point from the Bench Book that it may be difficult to know to what extent an individual is working hard to hide a stammer, and feelings of shame etc can leave many who stammer going to extraordinary lengths to change what they want to say, or to avoid speaking altogether. (para 34-37)

Presented himself well at hearing (but need to consider other evidence)

During the hearing the claimant “presented himself exceptionally well and did not give the impression that he was struggling with finding words or being able to communicate.” Considering that giving evidence at a tribunal could be considered to be one of the more stressful experiences an individual could participate in, the claimant performed extremely well and was able to answer the questions put to him clearly and in a thoughtful and clear way. (para 38)

While that might be the case, the tribunal “did take into account the fact that despite his coherent presentation in his evidence, [the claimant] may have experienced a heavy ‘mental load’ in trying to ensure that his stammering does not become obvious and I needed to consider the evidence available to me concerning how his condition affected him in his day to day activities at the material time, namely during his employment with the respondent.” (para 39)

Lack of evidence

A problem in this case, said the tribunal, was that there was limited medical information available to the tribunal, and within it, limited content concerning the magnitude of the claimant’s impairment. The claimant had produced the single letter from his GP, which was helpful in confirming he had a long-term stammer but did not really deal with the question of whether it had a substantial adverse effect upon his day-to-day activities. The speech and language therapy was very much “historic”, having taken place in 2010. (para 40)

Additionally, the claimant’s impact statement did not go into sufficient detail about the impact his condition had upon his day-to-day activities at work. The judge was therefore left with the oral evidence of the claimant, and of course that of his work colleagues. (para 41)

Conclusion

Ultimately, while the tribunal did not doubt that the claimant had found the condition of stammering to be a challenging condition which had affected his life and which had required him to develop strategies, the available evidence on balance, led the tribunal to conclude that his condition did not “severely” [the judge may have meant “substantially”, ie to a “more than minor or trivial” extent, which is the test in the Equality Act] impact him at work. (para 42 – 47)

  • The three activities which the claimant said caused him problems, did not appear to be noticeable in any significant degree to those work colleagues who gave evidence.
  • Several of the employer’s witnesses spoke of the pauses which could arise in conversation and also some occasional mild stammering noticed by his work colleagues in the stores. However, this did not result in a communication difficulty at work and it was certainly not a matter which caused difficulties in terms of performance.
  • The tribunal considered some examples from the 2011 statutory guidance on definition of disability and found no support for the claimant’s arguments there.
  • There was no evidence to suggest the claimant displayed any obvious anxiety or any difficulty in presenting his evidence at the daily meeting. Indeed his colleagues in the stores who also had to take turns at performing this task also found that activity stressful. The tribunal was left with the conclusion that the claimant performed no differently to them, and potentially may have even performed better than them.
  • In relation to telephone calls, there was no evidence to suggest that the claimant could not perform the tasks given to him by his manager, and the tribunal was satisfied from the available evidence that he was able to perform those duties without causing any difficulties for potential customers or clients. Certainly there was no evidence of any complaints being received.
  • In terms of transactions at work concerning the provision of spares from the stores, there was no evidence that the claimant was unable to communicate. There was some evidence to suggest that once individuals became aware of the claimant’s stammer, people might be aware of a slight difference in how he spoke. Importantly, based upon the evidence that the tribunal heard, the tribunal accepted that it was a slight difference, rather than something which impacted upon his ability to communicate and would normally be noticed in relation to the pauses which might take place before he provided an answer or between sentences. His colleagues in stores, did notice a stammer, but again it was something which was not considered to be significant and which did not affect his ability to do the job.

Accordingly, on balance of probabilities, insofar as the claimant’s ability to do his job was concerned, the stammer was not substantial and did not have an adverse impact upon his day-to-day activities. (para 48)

The tribunal was not, in considering the evidence before it, seeking to belittle or diminish the impact that this condition had upon the claimant. No doubt he had spent a great deal of time trying to manage it and at times, especially in the past, it had caused him some considerable dismay. (para 49)

However, as regards the relevant period in this case, the tribunal was unable to conclude that the condition was substantial in terms of adverse impact on day-to-day activities. For this reason the claim that the claimant was disabled by reason of stammering or stuttering must fail. Therefore his complaints of disability discrimination must also fail. (para 50).

Adjustments in the hearing

The tribunal said that in accordance with (among other things) the Equal Treatment Bench Book, it had asked about any adjustments that the claimant felt would assist him with giving his evidence and ensuring that he could fully participate in the hearing.

The claimant had explained to the judge that he simply required time to give his answers to questions and that he should not be interrupted as he was speaking. The employer’s lawyer had confirmed that she would take account of this request.

Additionally, the judge made sure a number of breaks were incorporated into the day’s hearing and reminded the claimant that he should ask for a break where he felt it would be of assistance. (para 11-12)

My comments

Comments: Equal Treatment Bench Book

Stammering was included for the first time in the February 2021 edition of the Equal Treatment Bench Book. This document aims to assist judges in supporting parties with disabilities (among other things) in court. It is not aimed at decisions on whether someone is disabled under the Equality Act. However it is to be welcomed that the tribunal was happy to take the Bench Book into account in this case. The tribunal said it was “satisfied that [the Bench Book] provided a useful summary of the precise nature of stammering or stuttering”, and summarised and quoted from it extensively.

This was helpful in that the Bench Book stresses how effects of stammering may be hidden, even if someone (like the claimant here) sounds largely fluent. The tribunal was therefore clear that a stammer may have hidden effects, even though the claimant’s own evidence does not seem to have said much about this. That message from the Bench Book quite likely informed the tribunal’s point (para 39) that even though the claimant presented well to the tribunal, he may have experienced a heavy “mental load” in trying to ensure his stammer did not become obvious. The tribunal said (as it would hopefully have said even without the Bench Book) that it needed to consider the evidence available to it concerning how his condition affected him in his day-to-day activities at the material time.

Comments: Lack of evidence

The tribunal seems to have been primed by the Equal Treatment Bench Book (above) to be open to evidence of hidden effects of the stammer. However the tribunal considered it just did not have the evidence to enable it to decide the stammer had a more than minor or trivial adverse effect on normal day-to-day activities.

The tribunal commented that the medical evidence presented to it was very limited, just a short letter from the GP saying he had a stammer and not addressing its effects. Also, said the tribunal, the claimant’s impact statement did not go into sufficient detail about the impact his condition had on his day-to-day activities at work. (Note that legally effects outside work are also relevant so far as they are normal day-to-day activities.)

So a key message is that claimants should ensure they present the best evidence they can that their stammer meets the Equality Act requirements for being a disability, if the employer disputes this. Particularly if effects of a stammer are hidden, as seems to have been the case here, expert evidence from a speech and language therapist (SLT) specialising in stammering may well be helpful in persuading a tribunal that the effects are substantial.

Even if there is no SLT report, the tribunal clearly needs evidence of the adverse effects in some form. The claimant’s own impact statement and oral evidence to the tribunal do not seem to have included enough on how the stammer adversely affected his speech/communication etc or activities more generally.

In response to this tribunal decision Stamma (British Stammering Association) has issued a Press statement (mynewsdesk.com). Among other things this urges people who stammer bringing

Stamma (the British Stammering Association) has issued a Press statement (mynewsdesk.com) in response to this tribunal decision. Among other things it encourages people bringing stammering discrimination claims to get a report from a speech and language therapist, and seek legal advice and work with Stamma to prepare appropriate evidence of the impact of their stammer. “This way future judgements can reflect the reality of the lives of people who stammer.”

Comments: Effect on claimant’s feelings not enough

The tribunal seems to have gone on the basis that how the claimant feels is not in itself a relevant adverse effect in deciding whether something is a disability. That is probably right, though I don’t remember the point coming up before.

In practice though, people’s feelings will usually affect their behaviour in various ways – for example avoiding some situations, not speaking up, saying less, or otherwise not saying what they really want, as discussed on Hiding the stammer. The statutory guidance specifically says:

B9 Account should also be taken of where a person avoids doing things which, for example, cause … social embarrassment…
Para B9 of 2011 guidance

Presumably in this case the tribunal just did not consider it had the evidence of what real-world effects the claimant’s feelings had. It is difficult to comment on whether this was a fair conclusion. For example, it should have been relevant that anxiety made it much more difficult for the claimant to deploy his strategies and avoid stammering (para 19), even if those strategies are not discounted (below). Para B10 of the statutory guidance says a tribunal should take into account that the person’s strategies will break down sometimes, for example when the person is placed under stress. But it is understandable that the tribunal might have considered a general statement that his strategies sometimes failed when he was anxious to be insufficient, without more specifics, especially in the light of colleagues’ evidence.

Comments: Discounting effect of speech therapy techniques

The claimant might have argued that the tribunal should discount the various techniques he was using, and should look at whether his stammer could well have had the required more than minor or trivial effect were he not using them. See Discounting speech techniques etc.

The claimant confirmed to the tribunal that he used strategies given by his speech and language therapist. These included practising talking into a mirror, talking with headphones on, and pausing before he spoke in order that he could gather the necessary words and speak clearly without any stammering taking place (para 19).

Under the Equality Act the relevant effect of the impairment is what it could well be without ongoing measures such as medication, hearing aids or prostheses. A Paralympic athlete who runs brilliantly on prostheses is still disabled, even as regards ability to run, because the tribunal looks at how the person would be without prostheses.

I’m not aware of any cases about this directly on stammering. However cases have held that measures to be discounted include for example counselling for depression, and a voice management regime to avoid recurrence of vocal nodules.

If the tribunal agrees that the strategies should be discounted, it would expect evidence that the relevant effect of the stammer could well be more than minor or trivial were the measures not being used. It may expect expert evidence on this such as from a speech and language therapist (SLT) specialising in stammering

Comments: Effect on the individual

The tribunal commented that the claimant was able to perform his work fine, and at meetings may actually have been better than colleagues. However note there is authority that the tribunal should look at the effect of the impairment on that individual, comparing his actual ability with how he would be without the impairment. See “Substantial effect”>Effect on the individual. A person may have abilities well above average, but the impairment still has a more than minor or trivial effect on that person’s ability.

Comments: Knowledge of disability

If the claimant had succeeded in showing he had a disability, there would probably also have been the question whether the employer knew or could reasonably have been expected to know of the disability. This would include knowledge of the more than minor or trivial effect of the stammer (Knowledge of disability>Knowledge of facts of the disability, rather than law).

That might have been another tricky question. If the employer did not have actual knowledge, would reasonable enquiries have elicited the required knowledge?

Whether the employer had knowledge, actual or constructive, that the claimant had (not just a stammer but) a disability within the Equality Act would have been relevant on a claim under s.15 EqA – eg that the employer had dismissed the claimant for a reason arising from his disability without sufficient justification – and on a claim under the reasonable adjustment duty.

Comments: Reason for dismissal

We don’t have details of the incident that led to the claimant’s dismissal. The claimant presumably alleged that the reason for his dismissal had something to do with his stammer.

It’s a shame we don’t know how the claimant alleged his dismissal linked with his stammer. This might have given an example of a significant adverse real-world effect of the stammer.

Internal links

Press statement by Stamma

20th anniversary of stammeringlaw, 1999-2019