New guidance on disability

New guidance on the definition of 'disability' in Equality Act 2010 came into effect on 1st May 2011. Allan Tyrer outlines some of the changes.

"...A man has had a stammer since childhood. He does not stammer all the time, but his stammer, particularly in telephone calls, goes 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 avoidance strategies. He tries to avoid making or taking telephone calls where he believes he will stammer, or he does not speak as much during the calls. He sometimes tries to avoid stammering by substituting words, or by inserting extra words or phrases. "In these cases there are substantial adverse effects on the person?s ability to carry out normal day-to-day communication activities." Equality Act 2010: Guidance on matters to be taken into account in determining questions relating to the definition of disability, paragraph D17

Since October 2010, the Equality Act 2010 has largely replaced the Disability Discrimination Act 1995 (DDA). The Equality Act introduced some legal changes to the definition of 'disability' but these are not important for stammering. More important are changes in the statutory guidance on the definition of disability. The guidance is not an authoritative statement of the law but tribunals should take it into account.

As under the DDA, a person has a disability under the Equality Act if he or she has a physical or mental impairment which "has a substantial and long-term adverse effect on [the person's] ability to carry out normal day-to-day activities." The main issue with a stammer is whether it has the required 'substantial' effect on normal day-to-day activities. 'Substantial' means only 'more than minor or trivial', so the test is not a difficult one to meet. There are various detailed modifications to the basic definition which I won't go into here, for example if effects are no longer 'substantial' but may well recur in future.

Assuming the stammer is a 'disability' as defined, one is protected under the Equality Act from discrimination or harassment related to the stammer - for example in the workplace, at university, or in provision of services, including a right to reasonable adjustments. For some types of claim however - namely 'direct discrimination' and harassment - it is now probably enough that the employer etc perceives one to have a disability, even if one does not. (Indeed protection from harassment is wider still.) The courts have yet to develop this area of law, but people are likely to often claim 'perceived disability' as an alternative where there may be argument as to whether their actual impairment has the required substantial effect.

Stammering examples

What does the new guidance say about stammering as a disability? It gives an example at paragraph D17 - see the blue box. The example is quite similar to one in the previous 2006 guidance but with some improvements. One improvement is a statement that there is a substantial adverse effect here, rather than previous wording that "it would be reasonable" to regard the effect as substantial. The example describes a common situation which will be familiar to many who stammer, and is consistent with the idea that a stammer should very often fall within the Equality Act. It is also excellent in highlighting to tribunals and others that the effects of a stammer may not be obvious to the listener, but may be hidden by avoidance strategies. Indeed avoidance itself, such as avoiding social situations or phone calls, may be a substantial effect.

There was another example on stammering in the 2006 guidance which BSA asked be either amended or deleted, and it has been deleted. This involved a woman using various strategies such as avoiding the telephone and limiting social contact. It said that in determining whether she met 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 life. We argued this was wrong in law, and inconsistent with other parts of the guidance. We also found it surprising that a tribunal should be even asked to consider whether it might be reasonable to expect someone who stammers to limit their life in this way, so that there was no 'disability'.

Minor stammer

At BSA's request, a statement has also been removed that might be seen as saying a 'minor' stammer is not a disability. The 2006 guidance said "inability to articulate fluently due to a lisp or other minor speech impediment" was not within the DDA. In the 2011 version, this statement is now limited to a lisp. This does not necessarily mean that any stammer is a disability. But one might argue that a stammer does go beyond the normal differences which exist between people, as stated in paragraph B1 of the guidance and the D17 example.

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

www.stammeringlaw.org.uk/disability/2011guidance.htm

From the Summer 2011 issue of Speaking Out, page 13.