A lawyer with a stammer was turned down for a job. His DDA claim failed on the grounds that the stammer did not have a ‘substantial’ effect. It was acknowledged that all the other requirements for the stammer to be a disability were met.
Employment Tribunal, Case no. S/401513/99, February 2000.
Facts
The claimant was a highly intelligent individual who was in regular employment and had achieved a degree of success in the field of litigation.
The tribunal had no difficulty understanding him and communicating with him. These processes were undoubtedly slowed down but the problems soon melted into the background and they had fewer communication problems with him than with many applicants and qualified representatives.
The claimant avoided wherever possible words or phrases which he knew would cause him problems, but suffered problems where he could not avoid them. He was embarrassed by his stammering, which he felt detracted from his otherwise apparent intelligence. For example, he had difficulty pronouncing his name, and so found it impossible to introduce himself in company. He had difficulty delegating tasks to colleagues since specific words might be involved, so he often found it easier to do the tasks himself. The stammering could become a problem where emotions became charged in litigation.
In his ordinary day-to-day activities the stammer affected him in a number of ways, for example:
- He would not in normal circumstances use the phone if it could be avoided.
- He avoided ‘stress situations’ in dealing with providers of services, in order to avoid embarrassment.
- He limited social contact outside the family because he found social conversation hard work.
- To avoid embarrassment to his children, he disengaged from family activities when they had friends in the house.
The tribunal considered two expert medical reports. The report of the employer’s expert said that the claimant’s stammer was “primarily a covert or interiorised one, in that it may not be obvious to everyone he meets as he manages to control and conceal it in many situations so it is variable in its obvious severity. He uses a lot of word substitution and pausing to control his speech”, so getting his message across might take him longer and his speech might sound a little convoluted because of substitutions. The report cited the view of stammering as “an iceberg, with the statutory nine-tenths beneath the surface, consisting of concealment behaviour, false roles, tricks, fear, avoidance, guilt, shame, and the far smaller proportion above of the ‘stammering behaviour’ itself.” Although the overt stammering behaviour was mild, said the report, the effect of the stammer on his ability to perform normal day-to-day activities had a much greater impact because of his fear, anxiety, avoidance and expectation of stammering, resulting in a moderate disability. The claimant had managed his stammer by ‘organising’ his life, choosing work and leisure pursuits which were not going to put undue speaking demands on him, or by avoiding potentially difficult speaking situations altogether.
Tribunal decision
The Employment Tribunal considered that the applicant fell somewhere between the bullet point examples given in the 1996 Guidance, so that the Guidance was “of only limited assistance”.
It seemed to the tribunal that the only argument between the parties was in relation to the use of the word “substantial” to describe the claimant’s condition: every other aspect of the test being satisfied. To the claimant, the stammer and its consequences were substantial. The medical reports referred to its physical manifestations variously as mild or moderate.
To the tribunal, the physical condition by itself was not substantial, given how he had addressed the tribunal. It accepted however that on occasion, in emotional or stressful circumstancs, his self-help mechanisms could break down (for an experienced practitionner an employment tribunal should not be stressful).
In examining his reaction to his condition, the tribunal held that it had to look at what the applicant does.
“As far as possible, he simply avoids or evades situations where he can get into difficulties. In this respect he is no different from someone who is extremely shy, for example; or someone who has a facial disfigurement. Most of the time, he has the option to avoid the situation, and take these options. Inevitably there are going to be some situations which cannot be avoided, but from the evidence, these are few and far between.”
Clearly the claimant did not regard his condition as ‘minor or trivial’, but an observer might well do so. Taking a commonsense view the claimant did not have a “limitation going beyond the normal differences of ability which might exist among people” (para A1 of the 1996 Guidance). The tribunal had considerable sympathy for the claimant but could not consider him a disabled person within the DDA.
My comment
This case was superseded by the 2006 Guidance and more recently the 2011 Guidance on definition of disability. Following representations by the British Stammering Association on this case, the 2006 and now the 2011 Guidance make clear that avoiding situations and otherwise hiding a stammer can be a relevant effect:
“…A man has had a stammer since childhood. He does not stammer all the time, but his stammer, particularly in telephone calls, goes beyond the occasional lapses in fluency found in the speech of people who do not have the impairment. However, this effect can often be hidden by his avoidance strategies. He tries to avoid making or taking telephone calls where he believes he will stammer, or he does not speak as much during the calls. He sometimes tries to avoid stammering by substituting words, or by inserting extra words or phrases.
“In these cases there are substantial adverse effects on the person’s ability to carry out normal day-to-day communication activities.”
Para D17 of 2011 statutory guidance.
Even before the 2006 Guidance, there were (and are) various legal grounds on which the decision could be disputed. The most basic is that the tribunal looked at what the applicant does rather than what he is able to do. This is contrary to the decision in Goodwin v Patent Office where (in line with the wording of the DDA and now the Equality Act) the Employment Appeal Tribunal said “In order to constitute an adverse effect it is not the doing of the acts which is the focus of attention but rather the ability to do (or not to do) the acts”, and illustrated this specifically with the example of a speech impairment. The tribunal should have taken into account the numerous situations which the claimant avoided (as acknowledged even in the employer’s medical report), rather than only taking them into account to the limited extent that he was unable to avoid them.
On the basis of this decision, a person who on the encouragement of his speech therapist starts going into talking situations which he would normally avoid, albeit he now stammers more because he is doing this, would be more likely to be ‘disabled’ after the therapy than before it! This would be a very odd result.
For more on avoidance and covert stammering, Hiding the stammer.
The decision was appealed but the appeal was withdrawn. The decision is not binding on other tribunals.
Argument that avoidance is no different from being extremely shy or having a facial disfigurement
Looking at what the claimant “does” (which is wrong as discussed above), the employment tribunal said that as far as possible he simply avoids or evades situations where he can get into difficulties, and that in this respect he is no different from someone who is extremely shy, or someone who has a facial disfigurement.
Most importantly, avoiding phone calls and social contact, for example, are surely a “more than minor or trivial” effect, which is the legal definition of substantial.
Further, phone calls and social contact are presumably normal day-to-day activities, and it is the effect of the impairment on the individual which matters (Substantial effect>Effect on the individual), not whether the effect is substantial compared with some population norm – let alone people who are extremely shy.
The tribunal’s point about facial scarring – and implicitly its point about being extremely shy – are negated in the 2011 Guidance:
B24 A lady has significant scarring to her face as a result of a bonfire accident. The woman uses skin camouflage to cover the scars as she is very self conscious about her appearance. She avoids large crowds and bright lights including public transport and supermarkets and she does not socialise with people outside her family in case they notice the mark and ask her questions about it.
This amounts to a substantial adverse effect…
Para B24 of 2011 guidance. The example goes on to explain that, in any event, a substantial adverse effect is not required to bring a severe disfigurement within the Equality Act.
The tribunal’s argument is also difficult to reconcile with paragraph B9 of the 2011 Guidance, which specifically says that account should be taken of where a person avoids doing things which cause substantial social embarrassment.
Finally, it should be borne in mind that the tribunal’s argument does not affect there being a substantial effect in terms of how the person would speak if they did not avoid.
