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equalitytalk.org.uk

How Equality Act 2010 applies to adult communication impairments in Britain

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Avoidance, and hiding the disability

People with communication difficulties may tend to avoid situations in which they have difficulties. Or they may communicate less, or use other strategies to hide the difficulty.

Key points

  • People may try to hide a communication disability, for example -
    • not going to a social event or other difficult situation, or
    • not speaking so much.
  • It seems this can be taken into account towards the impairment having a 'substantial effect'.

Introduction

It seems fairly clear that avoidance or hiding can contribute to a communication impairment having a substantial effect on ability to carry out normal day-to-day activities. So it can contribute to the impairment meeting the definition of 'disability'.

A example on stammering and avoidance is given in the Statutory Guidance:

From Statutory Guidance on definition of disability
"...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."
Statutory Guidance on the definition of disability, example in paragraph D17. (It says 'these cases' because there are two other examples before this one.)

More examples

One of the earliest major cases on the Disability Discrimination Act 1995 took (lack of) speech as an example of how a person might adapt their life to cope, but still have a 'disability' as defined:

Case: may be 'disability' even if one adapts life to cope
"In order to constitute an adverse effect it is not the doing of the acts which is the focus of attention but rather the ability to do (or not to do) the acts. Experience shows that disabled people often adjust their lives and circumstances to enable them to cope for themselves. Thus, a person whose capacity to communicate through normal speech was obviously impaired might well choose, more or less voluntarily, to live on their own. If one asked such a person whether they managed to carry on their daily lives without undue problems, the answer might well be "Yes;" yet their ability to lead a "normal" life had obviously been impaired. Such a person would be unable to communicate through speech and the ability to communicate through speech is obviously a capacity which is needed for carrying out normal day-to-day activities, whether at work or home. If asked whether they could use the telephone, or ask for directions or which bus to take, the answer would be "No". Those might be regarded as day-to-day activities contemplated by the legislation and that person's ability to carry them out would clearly be regarded as adversely affected.

"Furthermore, disabled persons are likely, habitually, to play down the effect that their disabilities have on their daily lives. If asked whether they are able to cope at home, the answer may well be "Yes", even though, on analysis, many of the ordinary day-to-day tasks were done with great difficulty due to the person's impaired ability to carry them out.... The focus of attention required by the 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....."
Goodwin v Patent Office, [1999] ICR 302, Employment Appeal Tribunal

The reasoning here is that one's ability to carry out normal day-to-day activities is affected even if one does not actually do those activities. For example, if you avoid parties because you have difficulty speaking or understanding, your ability to interact socially is still affected. The person is avoiding the party precisely because that ability is affected.

Another route to a similar conclusion is this: to say that the avoidance itself is the limitation on ability. This seems to be the approach taken in an example in the Statutory Guidance on facial scarring:

From Statutory Guidance on definition of disability
"A lady has significant scarring to her face as a result of a bonfire accident. The woman uses skin camouflage to cover the scars as she is very self conscious about her appearance. She avoids large crowds and bright lights including public transport and supermarkets and she does not socialise with people outside her family in case they notice the mark and ask her questions about it.
This amounts to a substantial adverse effect. ..."
Statutory Guidance on the definition of disability, paragraph B24. (For severe disfigurement, special rules mean she would not have to show 'substantial adverse effect'. However, the Guidance says a substantial effect would be present in this case anyway.)

This presumably ties in with a statement in the Statutory Guidance that substantial social embarrassment should be taken into account:

From Statutory Guidance on definition of disability
"Account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment, or avoids doing things because of a loss of energy and motivation. It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person..."
Statutory Guidance on the definition of disability, paragraph B9

An example of a tribunal decision which took into account avoidance rather than just how the individual sounded to a listener:

Case: avoidance taken into account
A Northern Ireland Industrial Tribunal held that a person's stammer was a 'disability'. The employer suggested that the claimant's speech difficulty only came out in unusual situations such as a job interview or appearing before the Industrial Tribunal, and that in his answers to cross examination the claimant demonstrated only occasional lapses from normal fluency. The Tribunal took into account that the claimant had difficulty with jobs where he had to speak a lot. He would employ avoidance strategies by asking other people to do things for him. He had difficulty with shopping and getting meals.
Shirlow v Translink (link to stammeringlaw.org.uk), (2007) Industrial Tribunal Nothern Ireland. (Northern Ireland legislation has differences from Great Britain, but shares a common origin in the Disability Discrimination Act 1995.)

The Appendix to the Statutory Guidance on the definition of disability also says it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities: "Persistently wanting to avoid people or significant difficulty taking part in normal social interaction or forming social relationships, for example because of a mental health condition or disorder."

Different treatment for some coping strategies?

Paragraphs B7-B10 of the Statutory Guidance on the definition of disability indicate there may be some strategies which a person would be expected to take to reduce effects of an impairment, so that it may not be a 'disability'. Paragraph B7 says: "Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities..." For example, it would be reasonable to expect a person who has chronic back pain to avoid extreme activities such as skiing. There is more detail in the Statutory Guidance.

However, the extent of this is not clear, and there may be legal issues with it. Also it is subject to the rule which says that where measures are being taken to correct an impairment, one looks at the likely effect of the impairment without the measures.

Knowledge of disability

If a person hides their disability, there may be situations where an employer or service provider etc does not know about the disability, and could not be expected to. As one might expect, this can affect its liability: see Knowledge of the disability.