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Stereotypes and assumptions

Stereotypes and assumptions about stammering are common, as they are for other disabilities. Less favourable treatment based on a stereotype may well be unlawful as 'direct discrimination', for which there is no justification defence. See also more generally Direct discrimination.

Summary

It is likely to be direct discrimination to treat someone less favourably based on assumptions from the person's disability, without considering that individual's actual abilities and circumstances. There is no justification defence for direct discrimination.

Direct discrimination is basically less favourable treatment because of a disability. The argument is that had the person not been disabled, the employer would have looked at their abilities. However, the claimant will be expected to show that the legal requirements for direct discrimination are met.

Example: An applicant mentions in a job application for a sales role that he has a stammer. The employer assumes that a person who stammers would not have the communication skills required for this role, and so does not invite them for interview. The employer does not look at the individual's actual abilities. This may well be unlawful as direct discrimination.
Note: There are people who stammer who have excellent communication skills.

Even if that individual's stammer was not a 'disability' as defined by the Equality Act, the employer may be liable on the basis that he perceived the applicant to have a disability (Perceived disability).

Even if this were not direct discrimination, it is likely to be unlawful as 'discrimination arising from disability'. The employer has a defence to this if it can show objective justification, but it would be very difficult to justify steretyping. See 'Direct discrimination' vs 'discrimination arising from disability': Is the distinction important in practice? (Note: On a claim for 'discrimination arising from disability', the stammer will need to be a 'disability' within the Equality Act. 'Perceived disability' does not apply there.)

Employment Code

The Employment Code at paragraph 3.15 says: "Direct discrimination also includes less favourable treatment of a person based on a stereotype relating to a protected characteristic, whether or not the stereotype is accurate." The Code goes on to give an example about age, which should apply equally to disability:

From the Employment Code, para 3.15:
An employer believes that someone's memory deteriorates with age. He assumes - wrongly - that a 60-year-old manager in his team can no longer be relied on to undertake her role competently. An opportunity for promotion arises, which he does not mention to the manager. The employer's conduct is influenced by a stereotyped view of the competence of 60 year olds. This is likely to amount to less favourable treatment because of age.

Later in the Employment Code there is an example specifically on communication skills:

From the Employment Code, para 11.36
A deaf woman who communicates using British Sign Language applies for appointment as a Chair of a public body. Without interviewing her, the public body making the appointments writes to her saying that she would not be suitable as good communication skills are a requirement. This could amount to discrimination because of disability.

Court decisions

Disability

The Court of Appeal in Aylott v Stockton on Tees Borough Council (July 2010) emphasised that stereotyping may be a legitimate basis for claiming direct discrimination, providing there is appropriate evidence.

Eagle Place Services v Rudd (link to bailii.org) [2010] IRLR 486, Employment Appeal Tribunal (EAT)
A solicitor had detached retinas, and required various adjustments including some working from home. He was dismissed. The tribunal found the real reason was that the employer was concerned it would not get an appropriate financial return in terms of the claimant's billable hours. The tribunal held there was direct discrimination (and the EAT upheld this). The employer had taken a "stereotypical view to the effect that the Claimant's disability made him an inconvenient liability that would inhibit or damage the [employer's] commercial objectives." The 'comparator' was a lawyer of the same grade and skills as the claimant and who shared a similarly good relationship with the client. The comparator would also need to work from home for two days per week but would not have to do so because of a sight disability. The tribunal decided that such a comparator would not have been dismissed; there would have been no need to as the employer, employee and client's needs/expectations would be met. So there was direct discrimination.

Price v Action-Tec Services, [2013] EqLR 429, Employment Tribunal
A telesales executive had just passed her trial period, but was then dismissed after an absence from work related to her husband's leukemia. The reason for dismissal was said to be under-performance. The tribunal held the real reason was that the employer had just found out about the likely effect on the claimant of her husband's disability, and also about the extent of, and ongoing nature of, the claimant's own disabling back condition which would require regular hospital visits. The tribunal said the employer could have embarked on a performance management process, and/or set out requirements to improve attendance. Instead, the employer made a stereotypical assumption that, because of the disabilities or herself and her husband, the claimant would be an unreliable and under-performing employee. The employer would not have made this assumption of an employee with the claimant's attendance record in the absence of the disabilies. Accordingly there was direct discrimination.
This case is also an example of Discrimination by association - the discrimination was partly because of her husband's disability.

Tudor v Spen Corner Veterinary Centre, 2006, Employment Tribunal
An employment tribunal found that the employer had made generalised and stereotypical assumptions about a claimant who had lost her sight. It was liable for direct discrimination.

Non-disability cases

That stereotyping can be direct discrimination is supported by sex discrimination cases, and also by the Baroness Hale in a House of Lords decision on race discrimination:

"Even if, for example, most women are less strong than most men, it must not be assumed that the individual woman who has applied for the job does not have the strength to do it. Nor, for that matter, should it be assumed that an individual man does have that strength. If strength is a qualification, all applicants should be required to demonstrate that they qualify."
Baroness Hale in the Roma Rights case (cited by Court of Appeal in the Aylott case).

As that quote illustrates, stereotyping can be unlawful even if the 'stereotype' has some truth in it:

In the Roma Rights case itself, it was held to be unlawful for UK immigration officers stationed at Prague airport to treat Roma seeking to come to the UK with particular scepticism, even though the vast majority (if not all) Czech nationals applying for asylum in the UK were Roma.

Accordingly, for example, even it is true that - averaged out - people who stammer as a whole have lower communication skills than the general population, it is likely to be direct discrimination to make a decision based on that stereotype. The employer should look at the abilities of the particular individual. (Incidentally, I do not know whether it is true on average that people who stammer have 'lower communication skills'.)

Baroness Hollis's statements in 2003 House of Lords debates (in Hansard) may support the argument that decisions based on stereotyped and generalised assumptions cannot be justified.

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Last updated 14th April, 2011 (part updated 21st June 2013)