Reviewing the DDA (2004) - British Stammering Association

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".

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.

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):

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.

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.

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.

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.

Let me take one example of something that happened. My partner (who also stammers) rang a helpline and the lady laughed at her as she was trying to speak. When my partner said that wasn't acceptable the lady said: "You see, you can talk perfectly well when you want to!" We wrote to the helpline who responded excellently. They listened to their tape of the conversation and the lady was taken off the helpline for re-training. They also contacted the BSA for information to help them build stammering into their general training courses for helpline staff.

It is easy to forget that the DDA goes beyond employment. Many people who stammer have had the experience of the phone being put down on them, when trying to book a table in a restaurant for example, or bad treatment on a helpline, or even face to face. This kind of thing is often illegal under the DDA. Even if you do not want compensation, a complaint may help change their practice. A disability conciliation service is available.

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.


© 2000-2004 The British Stammering Association.	LEGAL NOTICES: disclaimer, privacy/cookies, and copyright Registered Charity Numbers 1089967/SC038866