Since the introduction of the Disability Discrimination Act (DDA) 10 years ago, it has often been difficult to know whether a person with a relatively mild or less overt stammer falls within DDA. New guidance reflecting comments by BSA should help extend the range of stammering covered. Allan Tyrer reports.

Is stammering a disability?

Broadly, the DDA defines 'disability' as a mental or physical impairment that has a substantial and long-term adverse effect on one's ability to carry out normal day-to-day activities.

In some tribunal cases, there is no dispute that the person's stammer falls within the DDA. Sometimes the position is not so clear. To help interpret the definition here, tribunals may take into account decisions in previous cases, and a government guidance document on the meaning of disability. These have given rise to problems particularly where a stammer was seen as 'minor', or its effects were hidden. To help address these issues, BSA recently made two detailed submissions on public consultations about the way disability is interpreted and defined.

In these submissions, BSA took the position that all people who stammer should be legally protected against unjustified discrimination due to their speech. This is a new departure for BSA. It is not about whether people who stammer are 'disabled' in a general sense. Rather, people may be 'disabled' by society's attitudes to an impairment - the so-called 'social model' of disability. BSA believes that this should be recognised by the DDA, and accordingly that anyone who has a stammer (in the sense of the clinical condition) should fall within the DDA.

Say an employer turns down a person who stammers fairly mildly in an interview. It is paradoxical that the person's rejection is less likely to be justified as the stammer is not severe, but he is more likely to be excluded from the DDA because the stammer is not severe enough.

BSA also made submissions that various features of stammering should not detract from it being covered by the DDA - namely that effects may be hidden through concealment and avoidance, that the person may be using speech techniques to reduce overt effects, and that stammering may arise in particular situations but not in others.

New guidance

One of these consultations has now resulted in revised guidance to tribunals which applies to discrimination occurring on or after 1st May 2006. BSA welcomes many of the changes to this. The guidance is not an authoritative statement of the law. However, tribunals must take it into account, so it is important in how they interpret the DDA definition of disability in practice, where a case is unclear.

Hidden effects

Example from revised guidance: Para D25(1): "A man has had a stammer since childhood. He does not stammer all the time, but his stammer can appear, particularly in telephone calls, to go beyond the occasional lapses in fluency found in the speech of people who do not have the impairment. However, this effect can often be hidden by his coping strategy. He may try to avoid telephone calls where he believes he will stammer, or he may not speak as much during telephone calls. He may sometimes try to avoid stammering by substituting words, or by inserting extra words or phrases...[Two non-stammering examples follow] "In these cases it would be reasonable to regard these effects as substantial adverse effects."

The changes to the guidance are most important where many of the effects of a stammer are 'below the surface', eg where the person tries to avoid difficult speech situations. A tribunal decision in 2000 held that a stammer which was largely hidden was not covered by the DDA, though there is a strong legal argument that this decision was wrong. The new guidance is very helpful in clarifying that a stammer may well fall within the DDA where concealment/avoidance strategies are used. The example in para D25(1) of the guidance - see box - is adapted from wording suggested by BSA.

Another example in para B8, though positive in some ways, unfortunately confuses the position. It talks about a woman who stammers and, for example, avoids phone calls and limits social contact outside her immediate family. (Misleadingly it says she does this to 'manage her condition', but a speech therapist is likely to encourage a client to reduce avoidance.) The example says the adverse effect of her stammer may not be readily obvious, and continues: "In determining whether she meets the definition of disability, consideration should be given to the extent to which it is reasonable to expect her to place such restrictions on her working and domestic life." This may imply that speech difficulty in a situation one avoids (or even does not avoid?) is not relevant if it is reasonable to restrict one's life by avoiding it. If so, I find this amazing. I certainly cannot see any legal justification for saying that. Provided the activity is normal day-to-day, one should look at the person's ability to speak. Avoiding speech does not improve one's ability to speak - if anything the reverse. Hopefully tribunals will agree, but this remains to be seen.

The sentence quoted above is not easy to reconcile with the text of para B8 which says: "It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person." The mention there of avoidance due to "substantial social embarrassment" (suggested by BSA) is also helpful.

'Minor' stammer

The revised guidance goes at least some way towards BSA's argument that any stammer should fall within the DDA. A previous statement that a 'minor stutter' was not within the DDA has been deleted. BSA argued that under para B1 a 'substantial' effect is one going beyond the normal dysfluencies most people have, and that this should cover any stammer having some effect in normal day-to-day situations. Wording in the para D25(1) example now reflects this argument of BSA. On the other hand, the guidance also says that "inability to articulate fluently due to a lisp or other minor speech impediment" is not within the DDA (does a lisp affect fluency?). We will have to see how tribunals interpret the new guidance.

Also helpful is a bullet point example in para D25(1) saying it would be reasonable to regard as a substantial effect "taking longer than someone who does not have an impairment to say things". This was changed from "significantly longer" at BSA's request.

As before, the guidance says a 'substantial' effect is one which is more than 'minor' or 'trivial'. 'Substantial' does not mean 'very large'.

Other points

The phone example in para D25(1) may well be helpful in arguing that a person whose stammer appears mainly in one situation or limited situations is within the DDA. There are uncertainties here though.

Stammering in public speaking may perhaps be relevant under the new guidance, at least in some cases. An amended bullet point example in para D25(1) raises the possibility that speaking to an audience can, sometimes at least, be a 'normal day-to-day activity' (the guidance explains this phrase from para D4 onward).

How far use of speech techniques may detract from a person having a disability remains unclear, though there have been some improvements.

On all these points, it remains to be seen how the guidance will be applied.

Should the definition of disability be broadened?

BSA also recently responded to the Disability Rights Commission largely supporting an idea that the law might be amended to cover discrimination on the grounds of impairment, regardless of the level or type of impairment. As discussed above, BSA said particularly that any stammer should be covered. A much broader and more inclusive definition could, if properly worded, simplify matters and reduce argument. It might no longer normally be an issue whether the complainant has a 'disability'. The focus would shift to such issues as whether there has been discrimination. The DRC will make recommendations to the government, and any change if it happens will not be until about 2010.

Further information
www.drc.org.uk/the_law/legislation__codes__regulation/guidance.aspx for the new guidance
www.stammeringlaw.org.uk

This article is only intended as a general summary and is not a substitute for appropriate professional advice in any individual case. It applies to England, Wales and Scotland. Separate guidance and (for a broader definition) legislation would need to be introduced for Northern Ireland.

From the Summer 2006 edition of Speaking Out, pages 14-15

See also:
Employment index page
Reviewing the DDA - overview of the DDA from October 2004, also linking to further articles.