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'Substantial effect'

The main requirement for a stammer to be a 'disability' within Equality Act 2010 is that it must have a substantial adverse effect on the person's ability to carry out normal day-to-day activities. This page looks at what degree of actual (overt) stammering is a 'substantial effect'. Less obvious effects can also contribute, such as Hiding the stammer.

Summary

Does a stammer have a 'substantial' effect on ability to carry out normal day-to-day activities, so as to be a 'disability' within the Equality Act?

This will depend on the particular person's stammer, but very often the answer should be 'yes'. Substantial means only 'more than minor or trivial'.

See below the Stammering example in 2011 statutory guidance to get an orientation on what should be covered.

The focus is on what you can't do or have difficulty with. The employer can't say, for example, that problems with phone calls and in shops isn't a substantial effect because you can do some other activity fine. See below Focussing on what the person has difficulty with. (In any event, even in 'OK' situations' dysfluency may well be more than minor or trivial.)

In deciding whether the effect is 'substantial', a key point is whether it goes beyond the kind of difference one might expect in a cross section of the population. Since the general population do not have difficulty getting their words out, it could be argued that it is easy for a stammer to meet the test. See below Going beyond normal differences between people.

It seems a stammer can be a 'disability' even if the person is an excellent communicator. Ability to 'communicate' is different from ability to 'speak' in a normal way. See below May be an excellent communicator.

On separate pages: Hiding a stammer, long-term variation, therapy, and perceived effects

This page focuses on effects which are evident to other people ('overt' effects). However, steps taken to hide the stammer - for example saying less, avoiding situations, switching words - can also be important effects of a stammer, and should be relevant. There is a separate page on this: Hiding the stammer.

A stammer which no longer has a substantial adverse effect is treated as continuing to have one if such an effect could well re-occur in future - see Longer-term variations.

There may perhaps be substantial effects where your stammer is not evident because of speech techniques. This applies more clearly if you use an electronic fluency aid (eg DAF).

Even if a stammer does not actually have a substantial effect on normal day-to-day activities, on a claim for 'direct discrimination' or harassment it is likely to be enough that the employer (or service provider etc) perceives it to have that effect - see perceived disability.

Index to the rest of this page:

Stammering example in 2011 statutory guidance

"...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."

Para D17 of 2011 guidance. The reason it says 'these' cases is because there are two non-stammering examples before this one.

This does not set out preconditions a stammer must meet to be a 'disablity'. It is only an example in guidance.

However, the example illustrates in a concrete way that the threshhold is a low one. It is likely that very many people who stammer will be able to see themselves in this example. The person may have quite a mild stammer (though he also avoids) - it just goes beyond the normal dysfluencies that 'fluent' speakers would have.

There are further comments on this example at 2011 guidance; Example of stammering on telephone. This example applies in Great Britain, but is different in the Northern Ireland guidance.

Meaning of 'substantial - low threshhold

'Substantial' means 'more than minor or trivial' (s.212(1) EqA). So it does not mean 'very large'. The threshhold is not a high one.

Cases and guidance say a key point is whether the limitation goes beyond normal differences in ability which may exist among people. It can be argued that even a mild stammer does. See below Going beyond normal differences between people.

The Employment Appeal Tribunal said in Aderemi (2012) that there is not a spectrum between what is clearly substantial and what is clearly trivial. The question is whether the adverse effect is minor or trivial. If it isn't, the effect must be 'substantial'. See 2011 Guidance on definition of disability: Criticism by EAT.

Before Equality Act 2010, 'substantial' did not have a statutory definition. It was nevertheless interpreted as meaning 'more than minor or trivial. See below Note on Disability Discrimination Act 1995 (DDA).

Focussing on what the person has difficulty with

It is important that one does not look across the range of activities and balance what a person can do fine and what they cannot do or have difficulty with. The focus is on what activities the person cannot do, or has difficulty with. Examples of cases on this:

Goodwin v Patent Office, 1999, Employment Appeal Tribunal
"The focus of attention required by the [Disability Discrimination] Act is on the things that the applicant either cannot do or can only do with difficulty, rather than on the things that the person can do. ...."

Commissioner of Police of the Metropolis v Ekpe, 2001, Employment Appeal Tribunal (EAT).
"It is not a question of balancing individual losses of function directly against retained abilities. ...the question "Has manual dexterity been affected?" in circumstances where a person manipulates buttons only with difficulty cannot sensibly be answered by the riposte: "Well, she can still write a letter without difficulty...".'

Ahmed v Metroline Ltd (link to bailii.org), 2011, Employment Appeal Tribunal (EAT).
The employment tribunal had talked about what the claimant could do, by way of resolving a factual dispute as to what he could and couldn't do. The EAT (from para 46) held this was permissible, since the facts were disputed. However, the EAT reaffirmed that the tribunal must focus upon what he could not do. It was impermissible for a tribunal to seek to weigh what a claimant can do against what s/he cannot do, and then determine whether s/he has a disability by weighing those matters in the balance.

And a more recent case re-asserting this principle under Equality Act 2010:

Aderemi v London and Southeastern Railway, 2012, Employment Appeal Tribunal
"14. It is clear first from the definition in section 6(1)(b) of the Equality Act 2010, that what a Tribunal has to consider is on adverse effect, and that it is an adverse effect not upon his carrying out normal day-to-day activities but upon his ability to do so. Because the effect is adverse, the focus of a Tribunal must necessarily be upon that which a Claimant maintains he cannot do as a result of his physical or mental impairment..."

A person who stammers tends to find work phone calls difficult. It is not the right approach to balance this against things the person may have little problem with, such as chatting to friend or colleagues.
In any event, even in the chatting there may well be dysfluencies which are a more than minor or trivial effect, beyond the normal differences between people.

Going beyond normal differences between people

Summary

Though it's not in the Equality Act itself, official guidance and cases indicate that a (or 'the'?) key test for the effect being 'substantial' (ie. more than minor or trivial) is whether the limitation goes beyond the normal differences in ability which may exist among people.

It can be argued that stammering dysfluencies, eg blocking (even if hidden), are indeed something going beyond normal differences which exist between people. They are not the kind of natural dysfluency that a non-stammering person has.

Another point to mention here: one looks at the effect of the stammer on the individual, compared with how he or she would be without the stammer. It is not a question of whether the person's speech ability is within the normal range (see below Effect on the individual).

Guidance and cases setting out the 'normal differences' test

The 2011 Guidance describes what is 'substantial' as follows:

B1. The requirement that an adverse effect on normal day-today activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect..."
2011 Guidance, para B1

The 2011 Guidance uses similar words in its major example of a stammer which meets the test of having a 'substantial' effect:

"...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...."
2011 Guidance, para D17. For the full example see above Stammering example in statutory guidance.

This approach has been adopted in Employment Appeal Tribunal decisions:

Aderemi v London and South Eastern Railway, 2012, Employment Appeal Tribunal (EAT)
The EAT in Aderemi quoted the headnote of the Paterson case which, it said, rightly reads: "The only proper approach to establishing whether the disadvantage was substantial is to [assess] the effect of the disability on the individual. This involves considering how he in fact carries out the activity compared with how he would do it if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are substantial."
For more on this in the Paterson case, see Paterson: EAT: Whether effect is 'substantial' - comparison with population at large.

Applying the 'normal differences' test to stammering

Applying this to stammering, first one looks at the effect of the stammer on the individual, comparing his or her speech (and other normal day-to-day activities) with how it would be without the stammer. (See further below Effect on individual).

If that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are 'substantial' (at least according to the Aderemi quote above).

It can be argued that stammering dysfluencies, eg blocking (which may sometimes be hidden), are indeed something going beyond normal differences which exist between people, even where a listener perceives them as minor. A person who stammers has the normal dysfluencies that anyone else has, plus the stammering on top of that. People without a speech impairment do not have the problem that they know what word they want to say but it won't come out readily. Accordingly there is a possible argument that any effects of a stammer are 'substantial' (see also below Is any stammer covered?).

A person has a mild stammer but sometimes blocks for a second or so when s/he cannot get a word out. This is on top of the normal dysfluencies that anyone has. It can be argued this is 'substantial' since it goes beyond normal differences in the population.

So far as I know, tribunals have not considered this argument as regards stammering, and it remains to be seen what approach they take.

Effect on the individual

Another point from the Paterson quote in the Aderemi case above is that one looks at the effect of the impairment on the individual, comparing how he or she would be with versus without the impairment.

Paterson v Commissioner of Police of the Metropolis 2007, Employment Appeal Tribunal (EAT)
The claimant had dyslexia. An employment tribunal found that the claimant was disadvantaged when compared to his non-dyslexic colleagues in a high pressure exam for promotion, but that he was not disadvantaged with reference to the "ordinary average norm of the population as a whole" and did not have a 'disability'. He had produced high quality written work as a chief inspector. The EAT said the employment tribunal had applied the wrong test. One needed to consider how the claimant in fact carries out the activity compared with how he would do it if not suffering the impairment.
This approach was reaffirmed by the EAT in Banaszczyk v Booker, 2016.

So a disabled person may have greater abilities than the average norm of the population, even with a disability. Doubtless most people could not produce the standard of paperwork produced by the claimant in Paterson. But his dyslexia was still a disability because it had a substantial effect comparing his abilities with dyslexia to how they would be without it.

Similarly, with stammering, it seems that one looks at how the claimant is able to speak with the stammer compared with how s/he would be able to speak without it. That is the relevant effect (as regards speech). The issue is whether that effect (and any other effect of the stammer on other normal day-to-day activities) is substantial.

Accordingly, it is not a matter of comparing the person's speech abilities with the general population. However, once that effect on the individual is ascertained, it is important whether that effect goes beyond normal differences between people.

May be an excellent communicator

A person who stammers may feel they are an excellent communicator, just they do so with a stammer and may need a bit longer to say things. Is that a problem if one is arguing that the stammer is a disability? Most likely not - the stammer may still be disability within the Equality Act.

A person who stammers may have excellent communication skills. Ability to 'communicate' is different from ability to 'speak' in a normal way. There can be a substantial effect on the person's ability to speak normally, with a normal rythmn and pace, even though the person has excellent communication skills.

Is it sufficient that ability to speak in a normal way is impaired, as opposed to ability to speak in a way that communicates well? I'm not aware of any cases directly on it, but it seems likely the answer is 'yes'.

One argument for this is the fact that whether an impairment's effect goes beyond normal differences is key to whether the effect is 'substantial' (above Going beyond normal differences between people). That being the case, it would be odd if an impairment which constrains a person to speak in a way going beyond the normal differences between people is not seen as having an effect on their 'ability' to speak.

Take the example of ordering in a coffee shop. A person who stammers may be able to order a coffee but they do it with a stammer (it may take longer, speech rythmn may be disrupted, there may be repetition etc). That may be the case however good the person's communication skills are. Even so the person who stammers could argue that there is a substantial effect on ability to order the coffee, in that there is an effect going beyond the normal differences between people (see above Going beyond normal differences between people).

Further arguments that a substantial effect on someone's ability to'speak in a normal way should in itself sufficient for there to be a 'disability':

In practice, the person who stammers may well be able to argue that, for example, they sometimes (perhaps often) take rather longer to speak than a fluent person. Quite apart from arguing that it is sufficient that one speaks differently, the person here could argue that the stammer has a more than minor or trivial effect on how long it takes them to speak.

Note: Another reason a person who stammers may be thought to have excellent communication skills is through hiding the stammer, for example avoiding words, circumlocuting. However, doing this may well mean the person is not communicating as well as they could do, because the person cannot say what they really want to. Speech and language therapy will tend to encourge a person away from avoidance.

Guidance on what to take into account

This is in the 2011 Guidance. It is guidance, so it does not mean these are the only things which a tribunal should take into account.

Specifically on speech

Some impairments may have an adverse impact on the ability of a person to carry out normal day-to-day communication activities. For example, they may adversely affect whether a person is able to speak clearly at a normal pace and rhythm ... Account should be taken of how such factors can have an adverse effect on normal day-to-day activities.
2011 Guidance, para D17.

So the Guidance particularly mentions:

Time taken

Paragraph B2 of the 2011 Guidance says that in assessing whether the effect is substantial, the time taken by a person with an impairment to carry out a normal day-to-day activity should be considered. It should be compared with the time it might take a person who did not have the impairment.

In Banaszczyk v Booker, 2016, the EAT agreed that para B2 of the 2011 guidance was plainly correct in law, the time taken to perform an activity must be considered when deciding whether there is a substantial effect. The case is also helpful in holding that an employer's requirement that an activity be done at a particular speed did not prejudice its being a 'normal day-to-day activity'.

Note that the Guidance is not saying that you only have a disability if you take longer to say things. For example a person may speak with a broken rhythm and have a 'disability', but get as many words out within a given time as some 'fluent' people.

Way in which activity carried out

Paragraph B3 of the 2011 Guidance says another factor is the way in which a person with an impairment carries out the activity, compared with the way the person might be expected to carry it out if he did not have the impairment.

Cumulative effects

An impairment may not have a substantial effect on ability to carry out a particular normal day-to-day activity in isolation. However, its effects on more than one activity, taken together, could result in an overall substantial adverse effect (para B4 of 2011 Guidance). For example a person with breathing difficulties could experience minor effects on ability to carry out a number of activities such as getting washed and dressed, going for a walk and travelling on public transport, but taken together the cumulative result would amount to a substantial adverse effect (para B5).

A person has a stammer which is mild but may appear across a range of speech situations, eg shopping, phone calls. Even if the effects were not otherwise substantial (they may be substantial anyway, as going beyond normal differences between people), the range of activities in which it appears should help an argument that the stammer is a disability..

If a person has more than one impairment (eg stammering plus something else), one can look at whether the impairments together have a substantial effect (para B6 of 2011 Guidance).

If a person who stammers also has social anxiety disorder, the cummulative effect would be taken into account.
Note: Even where avoidance of social situations does not amount to a mental health disorder, it can still be taken into account. See Hiding the stammer.

Avoidance, electronic devices, speech techniques etc

The stammer may have a substantial effect even if outwardly you are speaking fluently. On avoidance/concealment see Hiding your stammer. On electronic devices, speech techniques etc see Therapy.

Duration of disability?

This is not in the 2011 Guidance, but has some authority in case law:

Cunningham v Ballylaw Foods Ltd, 2007, Northern Ireland Court of Appeal
The court said the substantiality of an impairment is influenced by the time it is likely to last. So an impairment is more likely to have a 'substantial' effect if it is long term.

This might help in arguing that a stammer (which is often lifelong) has a substantial effect and is thus a disability, even if it is fairly mild.

Variability - tiredness, stress, environment etc

The 2011 Guidance acknowledges that disabilities need not occur all the time to be within the Equality Act. Environmental conditions may increase (or reduce) the effect of an impairment, and those effects are relevant.

B11 Environmental conditions may exacerbate or lessen the effect of an impairment. Factors such as temperature, humidity, lighting, the time of day or night, how tired the person is, or how much stress he or she is under, may have an impact on the effects. When assessing whether adverse effects of an impairment are substantial, the extent to which such environmental factors, individually or cumulatively, are likely to have an impact on the effects should, therefore, also be considered. The fact that an impairment may have a less substantial effect in certain environments does not necessarily prevent it having an overall substantial adverse effect on day-to-day activities...
2011 Guidance, para B11.

For example, effects of a stammer which are more severe because the person is stressed or tired will be taken into account.

Another example of environmental conditions being taken into account is at para D20 of the 2011 Guidance, where a woman with tinnitus has particular difficulty hearing and responding to a supermarket checkout assistant if two people behind her in the queue are holding a conversation at the same time. A person who stammers may also find speech more difficult if others are talking around them.

At work

Similarly, environmental conditions at work can be taken into account towards there being a substantial adverse effect. For some work examples on stammering and environment, see See Normal day-to-day activities: At work: Some examples relevant to stammering.

There is a case saying that even unusual environmental factors can be taken into account.

Unexplained variations

A stammer may become more severe for no apparent reason. A person may be having a 'good day' and then suddenly have a severe block. Doubtless this should also be taken into account.

Cases

Where the line is drawn on what is 'substantial' as regards stammering will be a matter for the tribunals.

Where there has been a dispute on whether the stammer is a disability, there has been a good record of claimants succeeding on the issue. See Cases on whether stammer is a 'disability'.

In practice, there has often been no dispute that the stammer has a substantial effect, so the tribunal does not have to decide the issue. See Cases on stammering.

Check how much you actually stammer?

People who stammer may not realise the amount that they stammer. Also people around may have grown so used to it they don't notice much either. Recording yourself might give you an idea of how much you actually stammer, as well as having an assessment by a speech and language therapist.

Note on Disability Discrimination Act 1995 (DDA)

This definition of 'substantial' - namely 'more than minor or trivial - is now set out in the Equality Act 2010 (s.212(1) EqA). There was no definition in the previous Disability Discrimination Act 1995 (DDA). However, under the DDA, which the Equality Act has now replaced, 'substantial' was taken by offical guidance and the courts as meaning 'more than minor or trivial' (Para B1 of the 2006 Guidance, and Goodwin v Patent Office). Accordingly case law on what is 'substantial' under the DDA is generally likely to be followed for the Equality Act 2010.

A possible exception, in other words a case which may not be followed under Equality Act 2010, is:

Anwar v Tower Hamlets College 2010, Employment Appeal Tribunal (EAT)
This case was decided under the DDA (prior to Equality Act 2010). The EAT considered it permissible to find that an impairment did not have a 'substantial' effect if the effect was more than 'trivial' but not more than 'minor'. The "more than minor or trivial" test, said the EAT, was not a legal definition.
From October 2010, however, that test is a legal definition under the Equality Act. It is not clear whether this case is still relevant.

Is any stammer covered?

Arguably yes provided it has some effect on fluency in normal day-to day activities. However, this is not clear.

There is a policy argument to say that the focus should be on whether there is discrimination - if a stammer is significant enough that a person is discriminated because of it then it should fall within the Equality Act. The Disability Rights Commission recommended that any impairment should be covered by the DDA regardless of level or type (see Legal definition of disability to be extended?), but that is not the law at the moment.

However even under present case law and guidance, an argument can be made that any stammer is within the Equality Act if it has some effect on fluency in normal day-to-day activities. The main argument is that in the case of a stammer this effect will inevitably be 'more than minor or trivial', as it will go beyond the normal differences in ability which may exist among people (above Going beyond normal differences between people). The clinical condition of stammering is something beyond the dysfluencies which occur to most people.

Where the European Convention on Human Rights applies, that gives another possible argument for any stammer to be covered.

For more on the argument, see Is any stammer a 'disability'?

If the stammer does not go beyond the occasional dysfluencies most people have because it is being hidden or speech techniques etc are being used, it may come within the Equality Act anyway under the special rules on this - see Hiding the stammer and Therapy.

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Last updated 26th May, 2013
 (part update 5th May 2016)