Disregarding treatment and therapy
Measures being taken to correct an impairment, such as drugs or other medical treatment, can be ignored in deciding whether there are substantial long-term effects. One looks at what effects 'could well be' if the treatment were not ongoing.
- In deciding whether an impairment has a substantial effect, it may be possible to ignore the benefit of ongoing treatment.
- Examples of ongoing treatment or other measures could be drugs, voice management, or a fluency device.
- Speech therapy techniques may perhaps also be included.
EqA Sch1 para 5 says:
(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if—
(a) measures are being taken to treat or correct it, and
(b) but for that, it would be likely to have that effect.
(2) "Measures" includes, in particular, medical treatment and the use of a prosthesis or other aid...
[The provision goes on to say that use of spectacles or contact lenses does not count, and that regulations may make other exceptions]
What it means
If measures are being taken to treat or correct an impairment, one looks at what the effect of the impairment would be likely to be if they weren't being taken. For example if drugs are being taken for a condition, one looks at whether the effects of the impairment would likely be substantial without the drugs. These are often called 'deduced effects'.
It is important to bear in mind that this rule will often not be needed. Even with whatever measures are being taken, the impairment may be having a substantial effect on normal day-to-day activities.
Some particular points:
- 'Likely' means only 'could well'. The question is whether without the steps being taken the effects 'could well' be substantial. (See the SCA Packaging v Boyle case below).
- Measures to be disregarded are not limited to medical treatment, prostheses or other aids (Carden v Pickerings Europe Ltd (link to stammeringlaw.org.uk) and Northern Ireland Court of Appeal in SCA Packaging v Boyle below).
- There are cases setting boundaries to the rule, where treatment is not ongoing, or if the condition has been cured and/or there would be no substantial effects if treatment were stopped.
A vocal management regime for vocal nodules has been disregarded under this rule. The tribunal looked at what effects there could well be if she were not following the regime:
Case: voice management regime
A claimant with vocal nodules used a voice management regime. This regime included sipping water throughout the day, increasing humidity, avoiding certain foods and liquids, reducing the length of telephone calls and staggering them, trying not to shout or raise the voice over distance or above other noise, and various other things. The employer argued that she did not have a disability within the Disability Discrimination Act 1995 (the predecessor of Equality Act 2010). She argued that unless she continued the regime, the hoarseness and vocal nodules, and thus the substantial adverse effects of her impairment would be likely to re-occur.
The initial Tribunal held that she had a disability within the legislation - and that decision was upheld by higher courts (the Northern Ireland Court of Appeal, and the House of Lords). The voice management regime was 'measures' within what is now EqA Sch1 para 5, so one had to look at what adverse effects would be likely if she were not continuing the regime. 'Likely' meant only what effects 'could well happen' without the measures.
SCA Packaging v Boyle (link to stammeringlaw.org.uk), House of Lords, July 2009.
Example: voice prosthesis
After a laryngectomy a voice prosthesis may be inserted. This is a small one-way valve which allows the person to make sounds by pushing air from the lungs through the valve and up into the mouth. It seems that 'substantial effect' would be decided on the basis of how speech 'could well' be without the prosthesis. (Note: there may be a 'substantial effect' on speech even with the prosthesis.)
Stammering and fluency devices
Altered auditory feedback devices help fluency of some people who stammer. These play the person's voice back into their ear with a small delay and/or at a different pitch (see Electronic fluency devices (link to stammering.org)).
Even using a device, the stammer may well have the required substantial effect on normal day-to-day activities. But in any event under this rule one should look at what the effects of the stammer could well be without the device being used.
Drugs for stress-related speech difficulty
Case: anxiety condition helped by drugs
The claimant had an anxiety condition diagnosed as dysphoria, which included manifestations such as difficulty in speech and concentration. He was on an anti-depressant drug. The Employment Tribunal held the adverse effect was not substantial, so he did not have a disability. The Employment Appeal Tribunal sent the case back for reconsideration, saying the tribunal should have looked at what the effects would be without the medication. This was under what is now EqA Schedule 1 paragraph 5.
Hiero v Changework Now (link to bailii.org),  Employment Appeal Tribunal.
Speech and language therapy, and self-help
It seems very likely that ongoing speech therapy can fall within EqA Sch1 para 5. Counselling for depression has been held to fall within it: Kapadia v London Borough of Lambeth (link to stammeringlaw.org.uk), Employment Appeal Tribunal, 2000. One question would be: could effects of the impairment well become substantial if the therapy stopped?
However, even if a person is currently no longer seeing a speech and language therapist, presumably techniques suggested by the therapist (or a doctor) and being used ongoingly might also be covered, and so disregarded in determining the effect of the impairment. An example is the voice management regime in SCA Packaging v Boyle above
It also seems arguable that techniques developed by the disabled person themself, or learnt through self-help groups, books, or on the internet for example, might be covered if they reduce the effects of the disability. This would need to be decided by the courts.