Below are an impact statement and other documents used in an employment tribunal case in 2020, arguing that the stammer (a severe one) was a disability within the Equality Act.
Documents
The documents were not professionally drafted and aren’t presented as recommended documents. However they illustrate that even with a severe stammer such as this one an employer may still demand evidence and try and pick holes in an argument that the stammer is a disability. After the “further information” the employer did accept that the stammer was a disability within the Equality Act – it was clear enough that the employer did not consider it worth arguing before the employment tribunal.
- Claimant impact statement (pdf)
- Claimant further information on disability (pdf) and claimant letter accompanying further information (pdf).
The tribunal made reasonable adjustments by allowing the claimant to make representations in writing, to limit his speaking during the preliminary hearing.
I can well understand the claimant’s comment in his letter accompanying the further information that it is “blatantly obvious” that his stammer has a substantial adverse effect on his abilities to communicate, and “no reasonable person has ever disputed this”. See further My comments below.
Employer’s arguments
The employer did not accept that the claimant had a disability within the Equality Act on the basis of the “impact statement, but accepted it after receiving the “further information”.
Some of the points made by the employer in response to the initial impact statement are quoted in the claimant’s letter accompanying the further information (above). Others were, in summary:
- What mattered was whether he was disabled when employed by Y Ltd, so any difficulties after November 2019 were irrelevant.
- The employer accepted that his stammer was an impairment and a long-term condition.
- However the employer disputed that the stammer had a substantial negative effect at the relevant time.
- As to how far “normal day-to-day activities” were affected, the employer (at paragraph 2d of its response):
- quoted from statutory guidance as to what are “day-to-day” activities,
- alleged that at the time he was able to use the phone without obvious difficulty,
- disputed that social activities planned months in advance are day-to-day activities,
- said the claimant had not cited any specific examples of cancelling social activities at the relevant time,
- stated that ringing voice-activated services was not a common activity and that many services require callers to select options by pressing numbers.
- The employer commented that overall his impact statement focused on what he found caused his stammer to get worse rather than the impact on day-to-day activities.
- The employer made various points on the report by the speech pathologist Ms E, including that it was several years old and so did not give up-to-date information on a condition that evidently fluctuates over time.
Tribunal case management order
The employment tribunal had made the following case management orders, among others:
- By [date] the Claimant shall serve on the Respondent (i) an impact statement signed and dated by the Claimant in which he gives the following details in relation to his stammer; – when it started, how long it did or has lasted, what if any effect it has on his ability to do day-to-day activities, what, if any, medication or other treatment he has had for it, and what the impact of the stammer on his ability to perform day-to-day activities would have been if he had not had such treatment and (ii) any unredacted GP, hospital or other health records and other medical evidence which may exist about the Claimant’s stammer which is within his possession or which he can obtain
- By [date] the First Respondent shall notify the Claimant in writing whether or not disability is admitted, and if it is not admitted, why not.
- If disability remains in dispute then, if requested in writing by the First Respondent, the Claimant shall submit to a physical examination by a qualified Occupation health advisor, doctor, or other appropriate professional at the Respondent’s expense, failing which on subsequent application by the Respondent, the disability discrimination claims may be stayed.
My comments
The case illustrates that even though a stammer seems to be obviously a disability, and the tribunal itself makes adjustments for it, the employer may still dispute this and require evidence.
It also illustrates how making the right points in an impact statement can be important (see Proving disability). Professional input can be helpful where possible.
I am working on improving the Is the stammer a disability? part of this website, and will be considering whether I can include more on impact statements.
However some brief comments on some points raised in the documents:
- It is not just a matter of whether the person cannot do something but whether they have difficulty doing it, for example how much longer does it take to say things, how is the way in which they say things different from “normal”. See Substantial effect.
- Even if each individual effect is not substantial (ie more than minor or trivial) the cumulative effect may well be.
- The stammering example at para D17 of the statutory guidance indicates that a stammer need not be severe to fall within the Equality Act, and that hidden effects are relevant. It may be helpful to point out any parallels one’s stammer has with that example and with any other relevant examples or points in the statutory guidance.
- On what is a normal day-to-day activity, the effect of case law is that in an employment claim, work-related activities should normally count even if not day-to-day. For activities outside work, it may be worth thinking of them in terms of a broad description such as phone calls or social activities, rather than narrower descriptions of those things which are not normal day-to-day.
- It sounds like the claimant’s overt stammering had a more than minor or trivial effect, so that points below on hidden effects were not strictly needed – but it is still worth pointing out hidden effects.
- I would say that in general coping strategies such as word substitutions and fillers are evidence of substantial effect rather than the opposite. The statutory guidance from para B7 on where a person “can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy” lacks a statutory basis and may well be misleading.
- So far as a person uses therapy techniques, it may well be possible to discount their effect.
- The fact that effects of the impairment could well (again) become substantial in future even if they are not at the relevant time can be the basis of an argument that it is a disability.
Proving disability and reasonable adjustments (pdf, equalityhumanrights.com), 2014 includes an example of a disability impact statement, with tips and other guidance. The sample impact statement itself is on pages 23-24.
