Disability rules are changing in October 2004. Allan Tyrer gives an updated overview of stammering under the Disability Discrimination Act 1995 (DDA).

The DDA applies to employment, access to services, education and a few other areas. The basic precondition for most of these rights is that you are "disabled".

Am I disabled?

The most important test under the DDA is whether one's stammer has a substantial effect on one's ability to carry out normal day-to-day activities. "Substantial" only means more than minor or trivial.

In various tribunal cases the employer has accepted a person's stammer as a "disability". One first instance case held a person with a covert stammer not to be disabled, but I believe the case is dubious and that one can look at the effect the stammer would have if the person did do an activity (eg make a phone call) which he avoids.

Further rules may be relevant - for example, if you use an electronic device or possibly speech techniques, or rules on past disability and likelihood of relapse.

Employment

Changes under an EU directive take effect from 1st October 2004. Employers with fewer than 15 employees will now come within the DDA. So will occupations previously excluded, such as fire-fighters, police, and prison officers. Partners and "work placements" are also brought within the Act. The armed forces remain excluded.

There will now be three main ways an employer may be liable for discrimination (plus harassment):

1. Direct discrimination

This is new. The test is basically whether on the ground of a person's disability an employer treats the person less favourably than he would treat someone without that particular disability whose relevant circumstances, including his abilities, are not materially different. The new Employment Code of Practice (para 4.20) points out that this could apply if a disabled person's individual abilities are not adequately considered. The employer has no 'justification' defence.

2. Duty to make reasonable adjustments

This is somewhat broadened by the new rules. A person who stammers won a tribunal case in Summer 2003 because the employer failed to make adequate adjustments in an interview situation. On the facts, solutions such as written answers or 'text to speech' technology should have been considered, as well as giving more time. The new Code of Practice (para 7.25) gives an example of allowing a person who stammers more time in an oral test - or in some cases perhaps giving the test in written form. Adjustments while doing the job itself are also important.

3. Disability-related discrimination

This is basically as before. Broadly, an employer cannot treat you less favourably for a reason related to a disability unless he can show justification. To be justified, his reason must be material to the circumstances of the particular case and substantial.

Harassment will be covered by more specific rules than before. The new Code of Practice gives an example of a man who stammers feeling harassed because his manager makes constant jokes about people with speech impairments (para 4.39). Victimisation is also covered.

Procedural changes

The burden of proof will shift to the employer if the complainant makes out a prima facie case (ie, broadly, if he proves facts from which, in the absence of adequate explanation, the tribunal could find against the employer).

Also from October 2004, the Employment Act 2002 introduces statutory grievance procedures and dismissal and disciplinary procedures. Where a statutory grievance procedure applies, an employee will normally need to take the first step - setting out his grievance to the employer in writing - and wait a set period before complaining to a tribunal. Furthermore, compensation awards can be increased or decreased if a party fails to follow through a relevant procedure.

Access to services

Education

Education came within the DDA in September 2002 (except in Northern Ireland), but in schools the special educational needs regime remains important too.

Also in further and higher education, many areas including admissions and - with certain limitations - examinations are covered. From 1st October 2004 professional or trade qualifications bodies such as the General Medical Council specifically come within the DDA.

A new Disability Bill is set to bring further changes to disability discrimination law.

This article is only intended as a general summary and is not a substitute for appropriate professional advice in any individual case.

Allan's website is at www.stammeringlaw.org.uk

Disability Rights Commission helpline:
Telephone: 08457 622 633
Website: www.drc-gb.org
Or write to: DRC Helpline, FREEPOST, MID 02164, Stratford Upon Avon, CV37 9BR

From the Autumn 2004 edition of Speaking Out

See also:
Employment index page
A new look at stammering and disability - new guidance on meaning of disability (2006)
BSA calls for wider range of stammering to be recognised as a disability, plus other DDA updates (2005).
Employment tribunal win - emphasising that employers may be required to adjust selection interviews (2003).
A more than reasonable adjustment (2004) - one employer paid for a therapy course and BSA conferences