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Right to be heard: provision of services

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Last updated 26th October 2023.

In general, a service provider should wait and give you time to speak. This applies whether they are a shop assistant, a person speaking to you on the phone, or anyone else providing a service or exercising a public function.

This overlaps with Rudeness or mockery: services and public functions, where I discuss claims for harassment.

Discrimination arising from disability

If a service provider fails to give time to speak, this is usually likely to be unfavourable treatment breaching the Equality Act (EqA) as discrimination arising from disability (s.15 EqA) – unless the service provider can show objective justification (below), or possibly the ‘lack of knowledge’ defence (below). As discussed below, it is likely these defences will very often not apply.

The unfavourable treatment might be interrupting the person, for example. It can be “unfavourable” treatment even if the service provider would act in the same way to a non-disabled person who was taking some time, or who was speaking in an unusual way. This is because there is no need for a comparator (Discrimination arising from disability>Unfavourable treatment).

The same applies to an authority exercising a public function, as well as to a service provider.

Objective justification defence

The service provider or public authority has a defence if it shows objective justification. This requires it to show that the unfavourable treatment was “a proportionate means of achieving a legitimate aim”.

However, showing justification will normally be difficult in this situation. The service provider or authority would probably need to show not only a legitimate aim, a real need, but also that it could not have achieved the aim in a less discriminatory way, and that the aim was sufficiently important to outweigh the discriminatory effect on the person who stammers.

A customer with a stammer has difficulty in explaining to a bank cashier what his service requirements are. The cashier asks the customer to go to the back of the queue so as not to delay other customers waiting to be served. It seems likely that this would normally be a breach of the EqA.
More on this example, including the justification defence: Example: Queue in bank.

A person who stammers phones a restaurant to book a table. They are struggling to speak, and the restaurant puts the phone down. This is likely to be a breach of the EqA.
More on this example, including the justification defence: Example: restaurant puts phone down.

There will be some situations where not giving someone time to say what they want could be justified, such as in some emergency situations. It would be for the courts to draw the boundaries.

‘Lack of knowledge’ defence

The service provider also has a defence to s.15 EqA if it did not know of the disability and could not reasonably be expected to know. Often it will be evident that the person has a speech impairment.

Sometimes it may not be obvious though, such as where there is silence on a phone call, or indistinct sounds. Here it will be mainly a question of fact whether the service provider could reasonably be expected to know of the disability. STAMMA (the British Stammering Association) has a suggested script for a service provider receiving a “silent call”, to check if it is someone with a stammer or other communication difficulty.

Other types of claim

Other types of claim under the EqA could also apply here.

It may be harassment under s.26 EqA: see Rudeness or mockery: services and public functions.

Assuming it is not harassment, in some cases there will be direct discrimination for which there is no objective justification defence. It could be direct discrimination if, because of the stammer, the service provider treats the person worse than they would treat someone else who is taking longer to communicate.

The reasonable adjustment duty could apply where there a “provision, criterion or practice” of the organisation puts people who stammer at a particular disadvantage.

Can service provider require use of an alternative to speaking?

It may well be a reasonable adjustment for a service provider to offer alternatives to speaking. However can a service provider insist that a person who stammers writes down what they want to say, or gets someone else to phone or speak on their behalf, or to email in?

If the person who stammers wishes to speak themself, requiring them not to do so is likely to be treating the person unfavourably within s.15 EqA (and subjecting them to a detriment within s.29 EqA). Assuming it is not direct discrimination, the service provider will have a defence if it shows objective justification, namely that requiring the person to use the non-speaking alternative is a proportionate means of achieving a legitimate aim. However, as outlined above, the objective justification test is not an easy one to meet. It will depend on the facts, but in most cases a service provider would probably find it difficult to show objective justification for not allowing the person to speak.

The reasonable adjustment duty may also be relevant.

UK court cases and also the European Convention on Human Rights could help to counter any argument that a disabled person should be expected to use friends and family to help access services, rather than service providers etc making adjustments: Not having to rely on friends and family.

On inviting someone to write a note as an alternative to speech, see also Examples of adjustments for stammering and of discrimination: service providers>Writing notes?

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