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S v The Lord Advocate

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Last updated 13th January 2007.

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.

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The applicant 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 applicant 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 applicant’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 applicant 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 applicant’s condition: every other aspect of the test being satisfied. To the applicant , 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 applicant did not regard his condition as ‘minor or trivial’, but an observer might well do so. Taking a commonsense view the applicant 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 applicant but could not consider him a disabled person within the DDA.

My comment

This case has been superseded by the 2006 Guidance on definition of disability.

Even before the 2006 Guidance, there were (and are) various grounds on which the decision could be disputed. Probably the most serious is that the tribunal looked at what the applicant does rather than what he is able to do. This seems contrary to the EAT decision in Goodwin, and indeed to the wording of the DDA. The numerous situations which the applicant avoided wheverever possible (as acknowledged even in the employer’s medical report) were therefore taken into account by the tribunal only to the limited extent that the applicant could not 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.

Specifically on the comparision drawn by the tribunal with someone who is extremely shy, see Argument that avoidance is no different from being extremely shy.

The decision was appealed but the appeal was withdrawn. The decision is not binding on other tribunals.

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