Merit, Speech Disability and Discrimination

Merit, Speech Disability and Discrimination

Philip Leith [1]

Cite as: Leith P., " Merit, Speech Disability and Discrimination", (2014) 20(3) Web JCLI


There is a substantial body of evidence - going back over decades - which indicates that the employment sphere is difficult for those who suffer a speech disability. To a large extent, I argue, this is due to the setting of merit in terms of orality and aesthetic. It also relates to the low perception of competence of the speech disabled. I argue that to be effective against discrimination the notion of merit and its assessment requires focus. 'Merit' as a concept in discrimination law has had its critics, yet it remains important to investigate it as social construct in order to help understand discrimination and how to counter this. For example, in this article I look at an instance where the resetting of what was viewed as 'meritorious' in judicial recruitment successfully improved the diversity in lower judicial posts.

Further, given the relative failure of the employment tribunal system to improve the general position of those who are disabled, I look to alternative methods of countering disability discrimination. The suggestion provided is that an enforced ombudsman type approach capable of dealing with what may be the core issue around employment discrimination ('merit') would provide a better mechanism for handling the general situation of disability discrimination than the tribunal system.

1. Attitudes towards Stammering in Employment

There has been disability discrimination legislation in existence since the passing of the Disability Discrimination Act 1995 (the relevant legislation is now the Equality Act 2010) until which time disability rights were - where they existed - paternalistic and limited. [2] Although providing two decades of protection, a report for the Equality and Human Rights Commission (EHRC) suggested that there is a difference of nearly 30 per cent in employment rates between disabled people and the total working-age population [3] indicating that although there may be a formal protection for disability, in practice there is substantive discrimination still in existence. This EHRC report covered all forms of disability - from physical to long term health to mental health. This paper concentrates upon one of these - speech disability. [4] Speech disability of the type discussed here is a 'useful' disability to consider in the employment context because it is not particularly linked to other disabilities nor ill health and may offer a perspective to how to better handle discrimination, should it exist. I outline the particular problems of the speech disabled group here and suggest that we should wonder whether the legislative approach to date (based upon tribunal case-by-case litigation) is really the best way to create the 'Fairer Britain' which the EHRC currently sees as its target. [5] Calls to the EHRC's helpline certainly indicate that employment issues are significant for disabled people with over half of the calls in 2008/09 related to employment issues coming from this group. [6]

Stammering/stuttering [7] - the speech disability relevant here - is viewed as affecting around 1% of adult populations, with 80% being male. This figure appears to be consistent across populations and cultures. [8] While it certainly affects many fewer than might gender discrimination, it is - if these figures are correct - a disability which affects over half a million in the UK to some extent or other and around 7.5 million across Europe. Effects may lie between relatively mild and situation specific to chronic, though almost all stammering has a significant situational element. Stammering is a relatively complex disability, where some measure of genetic cause may be found, [9] and has the potential to give rise to psychopathologies in those who are non-robust, indicating that the disability can have substantial effects upon the mental health of those who lack protective coping or support mechanisms. [10]

In the 1980s and 1990s there were a number of research studies which investigated the perceptions by the non-disabled of speech disability and the competence of the speech disabled. These remain important, because perception may be a barrier more than a disability and more recent research has confirmed that these perceptions remain. [11] In one early paper Collins and Blood suggested:

"It has been reported that negative attitudes toward a person with a disability may be more handicapping than the disability itself. … The literature in the area of attitudes toward the disabled suggests that non disabled individuals feel uncertain and uncomfortable around the disabled. …. These feelings of uncertainty and discomfort regarding appropriate behaviour in the presence of the disabled contribute to negative perceptions by the non disabled." [12]

Their research was an attempt to find strategies to alleviate the negative attitudes towards stammering as found by, for example, potential employers, and a goal which was optional to employers since there was no legal requirement on employers to accommodate disability: it was at that point up to the individual to find means of overcoming a negative bias in potential employers. The map of employment law has now changed and there is an onus upon potential employers to be pro-active in order to make reasonable adjustment for the disabled. [13] It is clear from research that a major barrier to those who are disabled face in employment is the initial job interview, and that this is particularly the case with those whose disability is a stammer. For example, early research by Atkins and Kent on the attitudes of employers concluded:

"… recruiters are more willing to hire qualified individuals who exhibit what may be considered unattractive appearance features than they are those individuals exhibiting communication difficulties. Moreover, this is further substantiated by the fact that out of 20 job selection variables listed …., recruiters overwhelmingly ranked overall oral communication skills first, indicating that this item is the most important. Furthermore … overall oral communication skills also tied with enthusiasm, indicating those two variables to be the most critical to success in the hiring process of the 20 characteristics listed." [14]

Similarly, Warhurst and Nickson examined the trend which was emerging at that time for employers - particularly in the rapidly expanding service sector - to choose staff for their self-presentation skills rather than technical skills or experience. [15] They noted that Government training policy must urgently address this demand, or risk the creation of an employment underclass who don't meet the "aesthetic'' standards of prospective employers. In the new economies, the employment situation appears to be even more communication and appearance-led. Stammering is, of course, a disability which is usually accompanied by unwanted facial movements and poor presentation. Research by Craig et al. [16] on employer attitudes to a control group of stammerers and a group utilising a speech fluency method (which reduced stammering by using a relatively artificial speech technique) found that the employers were more positive towards the treated group, thus indicating that other facts being equal (that is, the same individual with the same 'merit value' [17]) is more positively viewed in the employment context when he or she exhibit a less speech disabled persona. [18]

Much of the understanding of employment issues can be read indirectly from these early attitudinal studies towards stammering - it has negative connotations and clearly affects the perceptions of the ability of the stammerer to perform. In another early paper,Employer Attitudes toward Stuttering, Hurst and Cooper carried out a questionnaire survey of some 644 employers. [19] They concluded that "while the majority of employers rejected the idea that stuttering interferes with job performance, they agreed that stuttering decreases employability and interferes with promotion possibilities." Interestingly almost all employers felt that despite the negative impact of stammering on employment, affirmative action for stammerers should be rejected. Silverman and Paynter attempted to quantify perceptions of occupational competence when stuttering was present. The results demonstrated that the more professional the occupation, the greater the impact stuttering had on views of competence:

"While both the lawyer and the factory worker who stuttered were viewed more negatively than others in these occupations, the negative impact of stuttering on the "appearance of competence" was greater for the former than for the latter. There were more than twice as many scales on which the lawyer was judged more negatively than was the factory worker. … In fact, the lawyer who stuttered was judged to be less competent than peers on the competent-incompetent scale, but the factory worker who did so was not." [20]

Worse, since it was not only competence which was viewed as problematic, but the very psychology of the sufferer was seen to be a problem:

"… a lawyer who stuttered was judged to be more afraid, confused, tense, discontented, frightened, lazy, dependent, uncomfortable, naïve, and disorganised than his or her peers, as well as less intelligent, employable, competent, educated, confident, talkative, mature, secure, natural , witty, stable, dominant, rich, sane, alert, and aggressive than his or her peers."

Hayhow et al. [21] in a UK questionnaire study of stammerers concluded that it is in school life and employment that most stammerers feel that the disability is most pronounced. Some of the responses included suggestions to the stammerer that they should not bother applying for promotion unless their speech fluency improved or became more controlled. The DDA was in force during the period of the study, yet appeared to have made no impact upon the employment of the respondents.

Generally the literature on attitudes to stammering has been consistent over the past few decades and can be encapsulated by noting that there is frequently embarrassment from people who interact with stammerers [22] , negative stereotyping of the 'personality of stammerers'; [23] a general attitude that stammering is intimately linked with issues of competence and the difficulty of educational achievement. [24] Even those who are professionally intent on a career in speech therapy are not immune to holding negative attitudes. Leahy, for example, carried out quantitative analysis of student therapist attitudes to stammerers [25], suggesting that stereotyping was as prevalent amongst this group as amongst the wider population, though she does suggest techniques for bridging the gap in understanding between therapist and stammerer may be possible.

Whilst external application of stigma to the speech disabled exists, there is also a measure of self stigmatisation. [26] In a recent paper Butler has noted - that alongside discrimination from employers seeking 'aesthetic labour' - those who stammer also constrain themselves in the roles that they seek due to the perception that their speech does not 'fit the role'. [27] She suggests that "presentational rules mobilized in the recruitment process, specifically during a job interview, offered challenges for participants. However, prior to this there was the dilemma of whether to declare their stammer on their application. Two men said they had on one occasion 'decided to come out on the form'; both reported that they did not progress beyond that stage". [28] The interview is a particularly difficult time, as Butler notes, "[t]he word most often used when discussing their success in the recruitment process was 'grateful'". We look to the interview situation below.

We can conclude from the literature that attitudes to stammering mirror the attitudes to other disabled groups and justify the inclusion of speech disability within a disability context. Yet the problem remains that stammering is an extremely complex impairment without - unlike other forms of disability - any clear reason for its existence and one which manifests itself in complex behavioural responses. [29] It is also a complex social phenomenon involving presentational and oral communication difficulties and thus a potentially challenging disability to which employers can respond.

2. Social Models and Medical Classification Systems

While the social model of disability is one which many disabled people prefer, it has had its difficulties as a concept. The original idea behind this was to refocus the 'problem of disability' from being one which was the problem of the disabled person to that of the context in which the disabled person has to operate. As Oliver, the initiator of the concept, has written, "we were not disabled by our impairments but by the disabling barriers we faced in society." [30] In terms of disability action this was purely positive, encouraging a more collective attitude towards resolving attitudes towards the disabled group rather than putting the emphasis upon the disabled person as an individual who had to sort out their own problems - a model which emphasised difference and impairment. Criticisms of the social approach were frequent, Oliver noting that "these came from the major charities and many professional organisations who felt that their dominance in our lives was under threat." Oliver's recent view thus argues the need for both perspectives (rather than dumping the social model) and is instructive in that it emphasises that without a generic understanding of the social context of disability, the disabled suffer the political outfall of only an individualised (ideological) framework towards resolving discrimination. The argument in this paper reflects the position of Oliver - speech impairment exists and each person differs situationally, but the social context in which the impaired have to operate remains a very substantial barrier to participating in a full life.

A medical model of disability has existed and was developed to include both physical and environmental factors thus reflecting the social context of disability. During the 1980s and '90s, the international disability rights movement encouraged radical change in how people with disabilities are considered in terms of their rights, and what is needed to secure those rights. Critics pointed out that the earlier WHO classification system (International Classification of Impairments, Disabilities, and Handicaps - ICIDH [31]) largely ignored the personal impact of disability, and the disabling effects and barriers that restrict people with disabilities from acceptance within society. Hurst outlined the effects of the use of the ICIDH's definition of people with disabilities in terms of a functional limitation:

"It perpetuated the idea that non-disabled people were normal and disabled people were not normal… it has underpinned our exemption from the mainstream, from civil society and from humanity itself… It perpetuated the concept of disability being another word for incapacity, impairment or lack of functioning - that is a problem within the individual that had to be changed to conform to 'normality." [32]

Similarly, the scope of the classification's terminology was limited as it did not take account of those with health problems, but who were not particularly limited in participation in life, perhaps because of their personal adaptations, coping skills, and attitudes to dealing with problems. Other concerns included the role of the environment as hindering or helping limitations imposed by disabilities; and its focus on activities that could not be performed, while not addressing those activities a person could perform. [33] De Kleijn-De Vrankrijker [34] describe the differences between the ICIDH and the ICF in terms of the 'exteriorized', 'objectified' and 'socialized' elements of impairment, disability and handicap respectively, contrasting with environmental factors, combining with personal, individualized activities and participation elements of the ICF. Three important principles of the ICF are: universal application; an integrative approach with individual features as well as social factors important in understanding the disability and intervention possibilities; an interactive approach that recognizes complexities in disabilities. [35]

Recent European case law and the introduction of the UN Convention on the Rights of Persons with Disabilities has left some confusion over just what role the social model now occupies in European law. In Chacón Navas v Eurest Colectividades SA [36] it is generally taken to be that the social model of disability was ignored by the court and a more constrained definition of disability was focused upon: "physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life." Commenting upon Navas, Waddington suggested that "by embracing the medical model of disability, and focusing on the limitation caused by impairment and the need to prove such limitation, the Court's decision flies in the face of values underlying the Directive and Community disability policy, and thereby create barriers to achieving the goals of the Directive". [37] The UN Convention's preamble takes a more social perspective: "[r]ecognizing that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others." [38] For the purposes of this paper, looking as it does at the professional arena, the divergence between European and national definitions is not so relevant, yet clearly decisions of the European court of this sort pose difficulties for the disability movement.

We can conclude that we have a situation where the social context of disability is recognized by WHO; equality of employability is recognized through the CJEU's definition of disability; and the Equality Act 2010 similarly promotes equality of employment. However, as we see in the next sections, the assessment of merit for the stammerer continues to be problematic.

3. Adjusting merit institutionally

There are critical perspectives on the notion of using a raw notion of 'merit' as a conceptual tool in research writing on discrimination. For McCrudden the term is problematic and suggests that "the use of the merit principal is unnecessary, given that it is possible to identify those separate elements which appear to underpin different conceptions …" [39] McCrudden's argument has been well known for more than a decade, but has failed to make traction: 'merit' remains a concept to which recourse is made in everyday employment matters and discussion of discrimination because it is such a useful one. But although there is, of course, no single philosophical notion which we can point to, and McCrudden is correct to highlight this, that does not indicate that the term is functionless. 'Merit' remains important and its nature will be argued over - language is agonistic [40] and even in mathematics concepts are not fixed [41] - and of course it will have multiple meanings: it is a social construct dependent upon its social usage and investigating such usage is just as important as philosophical analysis. In this section, therefore, we look at one investigation of 'merit' and suggest that it remains a useful tool for the discussion of appointments and promotions in the employment context. The particular point to be emphasised here is that it is possible, through analysis and resetting of how merit is calculated, to improve a situation which has been commonly viewed as discriminatory: that is, that it is possible to institutionally rejig 'merit'.

A project led by the author for the Judicial Appointments Commission of Northern Ireland (NIJAC) was two part. In the first element [42] what was interesting was which issues were relevant to those who applied for judicial posts in Northern Ireland and whether there were any which were particularly female-centric. In that first research we found that NIJAC and the new model of open competition for judicial posts which had been introduced had brought about a change in both attitude and success in appointment: women were being more successful in being appointed to judicial posts and that they were being seen as positive role models for others. The open competition model appeared to be attractive (except to the bar) since it measured 'competences' in a variety of ways, including written examination. [43] The research findings were positive and indicated that a structural and institutional approach could effect employment change given an agency actively tasked with bringing about change. However, this change had not reached the High Court in Belfast, or indeed the bar, where all judges were male and where a more male dominated approach was reported (e.g. some fields of practice were described as 'chick law' fields).

The second part of the research focused more on the barriers to the High Court and the assessment of merit and competence for those higher judicial roles. The project used, together with interview and focus groups, an online survey with a variety of vignettes [44] describing individuals who had less traditional career paths than were to be found in the existing High Court judiciary. Here we found that assessment of merit and competence was much less open and directed towards what was described by our respondents as a more 'male oriented' notion, thus setting barriers in the face of female and non-traditional applicants. The difficulty to our respondents was that merit and competence were being assessed in a different manner than in the lower judicial competitions. Women [45] who were surveyed and interviewed about the nature of the High Court judicial selection task indicated scepticism that meritorious women or other non-traditional candidates would be appointed - a particular problem in the High Court in Belfast where there are no women on the bench (and, at the time of writing, there are still none). The scepticism was rooted in the view that there was a certain model of 'ideal candidate' who met certain professional expectations, and that these expectations were more likely to be met by male candidates (that is, 'male oriented'). These expectations were based around a notion of 'merit' which was easier for men to demonstrate. To succeed women had to perform in a male manner rather than have an appointments system which reflected the differing ways in which women can 'make a difference'. [46] As this research project into judicial appointments was underway, it appeared to me that there were clear parallels in the 'problem of assessing merit' between women and the speech disabled and discussing speech disability within a wider context might help elucidate the research findings on speech and employment. The goal of this section is thus not to compare and contrast women and the speech disabled, but to utilise our understanding of research on women and employment to better understand how to counter employment discrimination of the speech disabled.

This is not an argument which is only relevant to candidates seeking to be senior judges, since as other academic commentators have suggested, there is a view in many professions that the assessment of 'merit' is at the heart of the failure of women in all sectors of society to advance to the upper reaches of professional life. For example, some have talked about the merit ideal of the 'hero model' of leadership being one which many men are comfortable with and many women are not, despite it having had negative consequences. [47] The difficulties women face in law are hardly novel in terms of professional fields: in medicine in the UK, more women than men have entered medical school since 1990 but women have failed to participate proportionately at management level despite the availability of part-time working etc. Given the changing structure of the UK health service (with clinical commissioning groups), this means that the failure to occupy management roles is happening at lower levels of management than previously. The suggestion in this article is that disability, too, can be seen as problematic when merit assessment is made on grounds which effectively discriminate when a disability runs counter to an ideal of 'best'.

'Merit' is to do with 'being worthy', and surely few involved with professional roles could wish to appoint or promote someone who was not worthy of that post. 'Merit' is thus a concept which is at the heart of any appointments system. Unfortunately, whilst being a simple term it is not a concrete, atomic concept - it is a social construct of the group who are deciding what is meritorious. In judicial appointments, merit is just as much a construct as in other areas and what constitutes merit is defined by relatively small elites - most usually the existing judiciary who have a significant input into any judicial appointment system. Malleson, as with other commentators, has dealt with this when she notes that merit has been constructed around the needs of "certain preferred groups in a way which as unfairly advantaged them". [48] To Malleson, writing in 2006, such a statement was no longer controversial, but it is not clear that she reflects the situation outwith the academic sphere. Paterson and Paterson's recent critique of the Supreme Court appointments system echoes Malleson, in part, but suggests that merit should be seen in a more contextual manner and take into account the needs of the court as a body rather than as a group of individual judges chosen 'as best' on the day. [49]

Perceptions of merit are, it is suggested, a fundamental issue with regard to the lack of equality in employment matters. In our NIJAC research, it certainly did not appear that those senior judges involved in making appointments to the High Court were consciously discriminating or had any intention to discriminate: indeed, they appeared to take the view that if there were meritorious women seeking higher judicial appointments, then they would be appointed. The problem to the appointers was that there was simply a lack of meritorious women candidates. When our project suggested that there was a strong view that such female candidates existed, there was a measure of surprise from these senior members of the judiciary that this was so. Their view appeared to be that if such candidates existed then they should come forward and be assessed - that is, that it was the fault of the potential applicants who were hiding from the assessment system. The view external to the appointment process was that there were indeed meritorious candidates, simply that they were not being recognized as such. More generally, if discrimination through merit assessment exists and is systemic one must wonder how equality is to be resolved - if an appointment process seems rational, well designed, directed towards the 'best candidate' on the day, and yet delivers a biased output, it is difficult to see how an unbiased output can be delivered without removing the existent central assessment of what is 'meritorious'. In our judicial appointments project, this appeared to be what female lawyers were saying: that non-traditional but meritorious candidates should be seen as worthy, rather than have to model themselves upon a traditional view of judicial merit. The nature of merit being sought under the current appointments, they suggested, was too narrow and too self-serving for one group and that a different view of merit was required.

What was the difference between the competitions for the lower judicial posts and the higher judicial posts? It seemed to us that NIJAC was being left free to positively open up the lower roles to non-traditional candidates through a re-assessment of what was required in terms of merit for these posts, but was not being left to do so at the higher judicial level where the view of merit used in the appointments process was quite widely seen as based on qualities mainly possessed by the bar, and to be based on seniority and experience of advocacy in court. The senior judges were thought to underline this view of merit and ensure its over-riding importance in the appointment process. Women generally believed themselves less likely to be seen as having this sort of merit or have the opportunities to gain it.

The argument relating to assessment of merit with respect to speech disability is developed below, but one conclusion which can be taken from the NIJAC research is that it is possible to effect change through an active counter-discriminatory agency. However, even given an agency willing to undertake this task, it is not always possible to do this given sufficient opposition from those who are enabled to control the assessment of merit and competence: that is, NIJAC as an agency was free to change the assessment of merit in the lower judicial arena, but not in the upper arena. Is there, therefore, some means whereby such lessons regarding active agency might be moved over to resolving the discrimination which - as we argue below - surrounds disability?

More generally with regard to women, the existence of the Sex Discrimination Act from 1975 might suggest that some four decades of litigation would have levelled the playing field sufficiently so that the most blatant forms of discrimination against women had been resolved. Evidence, though, continually suggests that while some women may have been relatively successful in the employment field, for the majority there remain perceived problems of discrimination based upon their gender. For example, surveys of women in employment indicate that being of child bearing age, pregnant, or having children can be seen to be a significant problem. [50] It may be argued that this is not truly reflective of the workplace at large and that the women being surveyed are simply incorrect in their view that they suffer as against male colleagues but other more concrete pieces of evidence suggest that female earnings continue to be substantially below those of males generally. [51] Further, that the perception of sex discrimination exists is indicated by the discrimination which is cited most frequently in England and Wales Tribunals is that of sex, with some 14, 700 in 2011/2, the last full annual statistics published. [52] It is in this context that the success of NIJAC in producing an employment context where women seeking lower judicial posts should be viewed: our respondents felt that the new commission arrangement had brought about real change against gender discrimination.

4. Assessing Merit

There were a number of complaints in our judicial appointments research project about how merit was being assessed. For example, there was a very strong view that being a barrister with a certain kind of practice (high value and/or prominent case load rather than family matters), being relatively senior (with far more experience than the formal requirements suggest), and 'being seen'. This latter aspect was particularly difficult for women and that, "the requirement to succeed is that you must think just like a man, you must act like a man ... be as good as a man". [53] Other suggestions noted that no matter what the standard of the woman's work, environmental factors would undermine their ability to compete equally with males:

"men can stay on here [the bar library] and then go home to a cooked dinner, the kids in bed, and go straight into the study ... they can hang around here ... do their work in the library .. networking in an informal way ... they can run into someone in the servery or on the stairs ... and get worked passed on".

"most of the women at the bar are juggling not only their practice but also their family life ... and I have watch my male peers at the bar advance far beyond me... they have good wives at home

"there is a very much a message - any time that you seek advice - that you won't get on as far as the men ... don't let your expectations get too high .. it's not what you know, it's very much the golf and the rugby".

"young male law students are more savvy - not necessarily about being a judge - but about making contacts ... to make a successful career ... which may lead to a judicial career because they have done all the right things".

These are the same kinds of complaints made in other professional areas. Sealy has discussed the changing perception of meritocracy that women who had progressed to upper levels (director level) within the banking world have during their career. Her interviewees suggest that women begin their careers believing that merit will win through, albeit that they might have to change their behaviours to accord with the existing rules of the game. But overall, while they may have 'outsider status' they would be judged on merit and as equal to male peers. Sealy reports that this initial perspective changed as they developed an understanding of how their organisations worked and they began to understand that "the adaption to more masculine norms did not fit with their need for integrity and authenticity and was 'not sustainable'". Effectively, pressure was being applied by the women upon themselves to act in a male manner in order to be successful, but as their careers progressed and they did become successful such behavioural change was found to be difficult to continue as they felt a discontinuity between how they would prefer to undertake their role and how they felt they were expected to behave. Sealy described this as 'The Imposter Syndrome':

[…] one day I'm going to get found out. And everyone's gonna go "well actually, she's not really very capable". And I don't know a single man who feels that [laughs]. They all think they're brilliant and perfectly capable. And yet virtually every woman I know here who is successful at what they do feels the same way." [54]

The kinds of male behaviours which were viewed as requisite for success in the banking world were more political (in the office politics sense) and could be seen as being the opposite of meritocracy since one could be a less effective member of staff but a more successful member of staff by excelling at office politics rather than the task in hand. And the lack of senior women in the organisation indicated a symbolic shadow over the more junior women who begin to "question the meritocratic processes of their organization". [55] What was effectively the case, the female Directors believed, was that merit was not as relevant as social capital, and that as they progressed up the ladder this became more obvious. This new understanding of context affected their own personal view of critical career decisions.

Women in medicine - and their paucity in higher roles - have similarly been researched. Here part-time working has been available and while there has been progression to Consultant level posts, there has been limited movement into clinical director posts. Newman's medical interviewees, [56] who have moved from practice to management roles, did not provide any counter to the view that family commitments must be dealt with in a male-manner: "Women doctors describe being inspired to work by their mothers, and supported by their husband's family, nannies, friends, job shares and a few colleagues. Robust child care and back up 24/7 was seen as essential. They considered the money they spent on childcare was an investment in their career." And the requirement for connections, too, required a male-approach: "Having good networks and social capital was seen as a prerequisite for success."

Thus when we look to the literature of other professional groups, we see exactly the same problem of male-oriented merit which we see in law. If success is to be got, those male paths have to be followed. The lesson from those women who have been successful appears to be that there is little point in having part-time careers. Instead, get a nanny. No connections through the golf club? Then find other ways to build up that social capital. And find sponsors who will help push your career through, just as male sponsors do (even if there is a lack of available 'sisters' to do this [57]). We see the problem: merit is defined in one particular manner, and to succeed you must accept and meet that definition. The conclusion might be that those women who have successfully risen to higher levels, are not particularly representative of women at large.

Move this argument onto the speech disabled and we see commonality: the social environmental factors which make communication difficult and which tend to reduce the visibility and perception of competence of this group, make it harder to build the social capital which brings success. If fluent women find it difficult, then it must be expected that the non-fluent suffer proportionately more - there is no equivalent means of 'investing in childcare' for the speech disabled as they attempt to build a non-fluent career in a world where merit is biased towards orality and presentational skills. Butler, indeed, suggests in her research that there is some relationship between the stammerer and non-male behaviour patterns. She suggests:

"Findings largely align to extant literature where 'strong', 'powerful' and - most importantly in this study - 'fluent' are linked with masculinity and with being 'respected' at work. This verbal style was in stark contrast to the way in which the participants reported that they presented. The men discussed the omnipresent quest for sounding right in the workplace and described their inability to achieve the required level of speech fluency in terms of a verbally activated emasculation. This research aligns with prior work in this regard, but contributes to our understanding of the interaction between masculinity and speech in describing how the men responded. Specifically, participants emphasized their holding of what are typically regarded as 'female' communication traits, as exemplified in 'listening capital'. They referred to these traits positively - against the inferiority claims of prior studies of emotional labour, service work and men … - being described by one participant as a 'gift'." [58]

It becomes clear, perhaps, that if the positives - if there are positives - are considered that the notion of merit can be extended to understand that communication is a more complex and nuanced process than simply being fluent. Unfortunately, the research evidence suggests that employers rarely pick up on that argument, and whilst an employment tribunal may, the precedent set by the Employment Appeal Tribunal in Wakefield (below) will make it exceedingly difficult to do so in the future.

5. Speech and Tribunal Case Law

It is not the intention to produce a review of speech disability case law here, but it is important to view the problems found through trying to resolve discrimination through case law. The paucity of cases (given the number of speech disabled and the evidence of employment difficulty) indicate that it is not a path which is chosen by many. Further, the case law which has developed might be seen to have acted counter to the general desire to improve the situation of the speech disabled. Tyrer's analysis of litigation relating to stammering lists only 13 cases where decisions have been provided by the Employment Tribunal (ET) or the Employment Appeals Tribunal (EAT). [59] In one, the applicant was unsuccessful because he was held not to be in employment (rather he was a franchisee in a driving school). [60] The earliest case, Shaughnessy v The Lord Advocate, [61] involved a lawyer who would avoid utilising the phone and other avoidance strategies. Tyrer's synopsis highlights some of the complexity of stammering behaviour:

"The report of the employer's expert said that the applicant's stammer was "primarily a covert or interiorised one, in that it may not be obvious to everyone he meets as he manages to control and conceal it in many situations so it is variable in its obvious severity. He uses a lot of word substitution and pausing to control his speech", so getting his message across might take him longer and his speech might sound a little convoluted because of substitutions. The report cited the view of stammering as "an iceberg, with the statutory nine-tenths beneath the surface, consisting of concealment behaviour, false roles, tricks, fear, avoidance, guilt, shame, and the far smaller proportion above of the 'stammering behaviour' itself." Although the overt stammering behaviour was mild, said the report, the effect of the stammer on his ability to perform normal day-to-day activities had a much greater impact because of his fear, anxiety, avoidance and expectation of stammering, resulting in a moderate disability. The applicant had managed his stammer by 'organising' his life, choosing work and leisure pursuits which were not going to put undue speaking demands on him, or by avoiding potentially difficult speaking situations altogether."

Despite the employer's expert's view the Tribunal held that the affect was 'not substantial' and the applicant was unsuccessful in his claim. The 2006 Guidance on Definition of Disability [62] however posited a similar example situation suggesting that it would indeed involve "substantial adverse effects". Two Employment Tribunal cases involved what would now, under the Equality Act 2010, be harassment. In Anderson v Walkers Snack Foods [63] the applicant was unsuccessful because the employer had made some adjustments, and in Browne v John Edward Crother Ltd, [64] the employer was held liable for abuse and taunting.

Of the remaining cases, the most relevant for this paper are those which relate to recruitment and promotion and highlight the difficulty of providing reasonable adjustment to the problems of presentation to an appointing panel. In Y v Bradford Council [65] adjustments allowing pre-set interview questions were discussed; in Shirlow v Translink an already employed applicant did not - in interview - provide sufficient examples and evidence of competence; in Y v Calderdale [66] the tribunal made suggestions as to how better a stammerer might have been interviewed and tested for the position. In Wakefield v HM Land Registry, which was an Employment Appeal Tribunal (EAT) decision, the applicant was found not to have sufficient oral skill to be promoted. [67] Wakefield is the most interesting for the discussion here since we see two diverse approaches taken by the ET [68] and the EAT. There was one legal issue which arose from this case (no right for an employee to demand specific adjustments) but the more relevant issues to this article are around the perversity which the EAT found in the ET's findings (and the criticism of their use of language). The applicant had applied for a more senior post where one of the requirements was "Excellent communication skills." The applicant had been offered the opportunity to see questions before the formal interview in order to help prepare answers - though the suitability of this adjustment is not clear since the candidate would still have to speak - rather than the request, "my preferred adjustment would be not to have the oral examination by the interview panel." The ET decision dealt with the assessment of merit through the human resources (HR) 'cherished' process and concluded that:

"5.3 … Had an oral "test" been necessary as a means of judging capability to do the job, it could have been an arguably good reason to interview orally. First we do not believe oral skills were anywhere near as necessary as Ms Kemp or Ms Norris now say. Second the interview process did not replicate the situations in which such oral skills as were necessary would be needed to be used. This is not a good reason.

5.4 Why then were the respondents so resistant? We do not believe Ms Kemp or any of the HR group are hostile to the claimant or to disabled people. They are wedded to the view that oral interview is the only fair way of assessing the comparative worth of candidates for any senior position. We accept that some, but not many, disabled people may use their disability to gain an advantage. Mr Wakefield is plainly not such a person. The fear of Ms Kemp is, in our view, that "giving in" as she sees it to Mr Wakefield's demands might be the "thin end of the wedge" which will ultimately lead to the "integrity" of HMLR's cherished promotion procedures being undermined. Intransigent refusal to change procedures for testing and assessment are the greatest source of disability discrimination of the type we see here. The respondent's witnesses were at pains not to say what we have just found to be in Ms Kemp's mind. However in the absence of any credible explanation that is all that is left. So powerful is the evidence that we do not need to think in terms of reversal of any burden of proof. As May LJ said in Noone v North Thames RHA and Neill LJ repeated in King v Great Britain China Centre the inference is "almost common sense".

5.5 There is no doubt that the claimant was discriminated against by a failure to make reasonable adjustments in connection with his application for the training manager's position. ..." [My emphasis]

The argument of the tribunal was that it was 'common sense' that the formalistic approach of the HR department was problematic and did not allow the abilities of the applicant to be properly tested - that is, that despite oral communication being poor in an interview situation it did not mean that in the everyday work situation the candidate would not be able to perform the role sufficiently well. The 'merit' being assessed by the HR process was not, the tribunal suggested, that which was necessary for the job role. The EAT took a decidedly different view, suggesting that it was clear from the job description that oral communication skills were at the heart of the post and thus agreeing with the notion of merit which HR posited:

"[90] We have earlier set out the relevant parts of the advertisement and job description for the [applied for] post. The list of essential experience and skills includes "excellent communication skills" which, we note, is not limited to skills in written communication. We are unanimously of the view that a fair reading or understanding of these documents as a whole leads to the conclusion that the post involved oral communication skills; see in particular bullet points 3, 4 and 5 in the list of main duties in the job description. The post was, it was not in dispute, a senior management post; its holder would have to manage a training team; such a task ordinarily surely requires oral communication skills. We must, of course, not substitute our view for that of the Tribunal; but, applying the test in Yeboah v Crofton set out above at paragraph 52 we conclude that any other understanding of the relevant documents could not reasonably be reached. "

The perspective from the EAT was that since oral skills were required in the post (though not specifically stated in the job specification) there was a requirement that oral skills should be tested and that an interview was the appropriate way to do that rather than by any external assessment of past performance in current post. Further, the employer seems to have taken the view that since the post might well involve aggressive situations where the appointed individual has to deal with confrontation, if they could not deal with an interview situation, they were hardly likely to be able to deal with the post itself. Of this Tyrer suggests:

"The EAT here seems to assume that an interview was, on these facts, an appropriate way to assess how the communication of someone who stammers will be in the job. With respect, this is wrong. Stammering can vary a great deal between different situations. For very many who stammer an interview will be a situation where stammering effects are more severe. A person may find 'confrontational' situations, for example, or some of them, significantly easier. … The EAT may have assumed that a relatively supportive atmosphere at the interview would make speech easier than in a confrontational situation. As in the Ohio case though, that is not a fair assumption to make. Just by way of an example, I don't remember that I [Tyrer was a lawyer] had much of a speech problem when negotiating with someone - it was one of my easier situations.

The employer seems to have made a similar assumption as regards size of meeting. Notes from the evidence given by one of the employer's witnesses included: "If cannot perform in a 3 panel, highly unlikely to cope in a large meeting at senior level." However, it cannot be assumed that a person will find smaller meetings easier than larger ones (size may be a contributing factor, but so may other important factors). Also, and most importantly, a job interview is different from a work meeting large or small. Furthermore, the possibility of reasonable adjustments in the job needs to be considered."

Just how reasonable adjustments might be made will depend upon a number of factors and no doubt will depend upon negotiation between the speech disabled person and the potential employer, although in this situation there appears to have been no such agreement. However, for the purposes of this paper, what is important is that it seems to be that the EAT are suggesting that for a senior role requiring good communication skills one must prove oral skills in interview: just the situation where most feel pressure upon fluency. We noted earlier that research indicated that the interview was a particularly difficult process for the stammerer - indeed Butler suggests that expectations from interviewees about how successful they might be in the job market are low and that it is only when particularly required skills are held by the stammering applicant that employers will be supportive. [69]

One can, of course, communicate well and not be fluent - a stammerer can get his point across in meetings through a variety of non-fluent means or use various strategies. [70] Yet the EAT appeared to take a highly simplistic view of the situation - a discussion of 'merit' perhaps which indicates that only fluent candidates might be meritorious. Little wonder that Tyrer accused the EAT of perpetrating stereotypes.

Finally, a subject which is legally current is 'lookism', relevant where - as Middlemiss points out [71] - indirect discrimination might be found where there is another primary discriminatory factor. Speech disability with associated facial contortions might lead to employers refusing to employ not because of the stammer, per se, but on the linked behaviour. In Primmer v Mayflower Kebabs, the tribunal awarded a redheaded female employee £17,618 for unfair dismissal and sexual harassment. The difficulty of proving this, as Middlemiss suggests, would depend upon the ability to collect relevant evidence.

6. The problem with Tribunals

For an individual who believes that they are or are being discriminated against, there is the legal avenue of an Employment Tribunal if there is no alternative means of resolution. Tribunals, which were set up as a quick and simple means of resolving disputes, [72] have become more complex [73] and many believe that employment law and practice has become one of the more difficult areas in which to adjudicate and that lawyering in this field is also one of the most legally complex. [74] The disabled individual who wishes to seek a remedy has three possible outcomes from a tribunal:

  1. That there was disability discrimination;
  2. That there was no disability discrimination (albeit there may have been behaviour which was problematic by the employer);
  3. That there was discrimination but that it was not of an unlawful kind e.g. the employer was justified (as in Wakefield in seeking oral skills for a specific post [75]).

Assuming that the applicant views each of these as an equally likely outcome (which, of course, is not true - we are not throwing dice) the complainant has only a 33% chance of success. With the near necessity to have legal representation due to the complexity of the process, it potentially becomes difficult financially for an individual to undertake a process where the odds are not balanced or are not slightly in their favour. Success, of course, will result in a financial (but not usually costs) award. This can be relatively high with the highest in 2012/3 being £387,472. [76] However, the median award was £7,536 and the average, £16,320 which might or might not cover the cost of representation (costs have now increased due to the introduction of fees). If the first possible result (that there was disability discrimination) is more difficult to prove in an adversarial context, then the odds fall further for the complainant. Given an employer who 'ticks the relevant boxes' in terms of disability support, then it is likely that these lower odds will be the case. Further, for the speech disabled the use of a tribunal itself may well be problematic - the need to present a coherent and lucid case does not necessarily sit well with a lack of fluent speech. [77]

This presumes that the goal of the applicant is financial. While cost is relevant in terms of fighting a tribunal case, the evidence that the primary aim of undertaking litigation is to gain financial awards is scant. As Renton [78] has suggested with regard to unfair dismissal, many surveys indicate that those who begin litigation are less interested in reward and more interested in having their value as employee asserted by the tribunal:

"In a typical unfair dismissal case, a worker may have three different definitions of 'victory'. First, they may desire the emotional satisfaction of hearing from a tribunal or from the employer that they should not have been dismissed. Second, they may seek re-employment with the same business. Third, they may seek compensation for their economic losses since their dismissal: if they are now unemployed, or if they are now employed in worse-paid job, the difference between the money that they would have earned and what they have in fact received. … It is often a surprise, then, to claimants to discover that employment tribunals are practically incapable of providing the first of these potential remedies, while even the second is only granted exceptionally. The law focuses all its attention at the third."

The Gibbons Review [79] was the last major investigation of employment tribunals and was produced in response to a general negative feeling from employers and employee representatives. It took a fairly robust attitude towards the failure of the tribunal system suggesting that it was too expensive, too formalistic and that recent reforms [80] had not improved the situation. Gibbons suggested:

"Employment tribunals are considered too costly and complex for all involved. The requirement to focus on procedure rather than merits is now excessive. … The Review heard that vulnerable employees can be deterred from accessing the tribunal system by the complexity of both the underlying law and tribunal process. In such cases the need to confront the employer directly before applying to a tribunal could act as a barrier to justice."

The complexity and cost of tribunals have arisen from a variety of sources, well documented in the literature: the rising use of legal expertise then becomes a near requirement [81]; the use of contingent fees tends to benefit higher earning complainants [82]; the attitudinal change from 'cloth cap' tribunal systems to judicial bodies with the associated change in nomenclature from 'tribunal chair' to 'judge' [83] ; the hardening of attitudes brought by formal litigation procedures when dispute resolution is not utilised; the increased up-front expense from having to produce written arguments prior to any hearing; the argument that bodies merge conceptually in an isomorphic manner [84]; etc.. In terms of discrimination claims, the tendency towards complex complaints which cross the various legal classifications, too, makes the system difficult to work within. The costs of application to the tribunal can now be added to this list. [85] Taken as a whole, we see that the Tribunal system has become consistently less friendly towards the employee, become more court-like; and generally failed in the original goal of providing a means of effectively providing a reasonably low cost, balanced mechanism for resolving industrial disputes. Such a transformation from the ideals of the Donovan Report is quite striking and perhaps reflects Zuckerman's suggestion that the problem with civil justice is that it involves lawyers. [86] As Mummery L.J. has suggested, the tribunal route has not managed to effect the social policy goals of equal pay:

"8. The long-term goal of the equal pay legislation, which has been in force since 1975, is not, of course, interminable litigation between waged workers and their employers about their rights. They all have other things to do and to spend their money on. The aim is the elimination of sex discrimination against women and against men in matters of pay. Putting that uncontroversial aim into practice is taking a very long time indeed, which is not surprising as the whole set up involves, indeed requires, the clashing of rights not just between employer and employee, but also as between groups of employees. The fact that the rights are qualified, not absolute, has not deterred trips to the tribunals and confrontation in the courts, which have demonstrated that they are not necessarily the best places in which to put an end to the injustices of discrimination in the workplace." [My emphasis] [87]

With the 'uncontroversial' goal of improving the general standing of a group of individuals (women in the workplace, the disabled, etc.) it is not clear that the tribunal system has brought forward improvements even though it has been the practice of bodies such as the EHRC to use the tribunal system as a means of clarifying law and for strategic reasons [88] (combined, of course, with an attitude of encouraging employers to work towards a 'Fairer Britain'). This method of using tribunals to focus on the development of case law also appears to be the general role played out by most of the institutions set up to improve fairness in the workplace, e.g. "ombudsmen" in Finland [89] although Sweden can also bring criminal charges. [90] The evidence is that for that group who are disabled, the workplace remains a hostile place both in terms of entry and in terms of dealing with unreceptive attitudes towards disability even though litigation strategies can and do improve the general context. For example, Susan Archibald, the individual who was complainant in Archibald v Fife Council, [91] a judgment seen to have marked a sea change in equality law, has suggested that while many have told her they were aided by the judgment, she had heard "from hundreds of people who were in similar situations to mine but who did not get help." [92] Such a strategy also has dangers in that a negative precedent may be set as in Wakefield - a distinct possibility given the vagaries of litigation.

Gibbons' view was that more mediation was the solution. However, the statutory mediation procedures which had been set out in the 2004 legislation should, he suggested, be replaced with "clear, simple, non-prescriptive guidelines on grievances, discipline and dismissal in the workplace, for employers and employees." The idealistic goal to "[s]implify employment law, recognising that its complexity creates uncertainty and costs for employers and employees" was also added. What are we to make of Gibbon's and his report which received the backing of both employer and employee organisations? Given that the trajectory of employment tribunals had been ever more towards complexity and cost, [93] the goal of reducing complexity and cost appears based more in hope than reason. The suggestion that existent mediation procedures were not working is perhaps also an indication that mediation per se can be problematic. However, for the purposes of this paper, Gibbons perspective was directed towards individualistic disputes, rather than those which dealt with a class of claimants such as women or disabled. [94] The critic of Gibbons might suggest that he continues to seek 'reasonable' and 'common sense' solutions when there may be other more fundamental issues at stake which are not particularly easy to resolve due to the wider context of discrimination.

We can identify one more problem for the tribunals system in the way it carries out assessment of the available evidence. In Wakefield the Employment Tribunal had heard the witnesses and the complainant and had come to a decision based upon that. When the case was appealed to the Employment Appeal Tribunal the complainant did not appear. Further, in the evidence seemingly looked at by the EAT there was no discussion of the wider research findings (which as noted above have been available for several decades on the issue of employment and stammering). Rather, the dispute was seen as detached from the wider context and individualised, rather than related to the social issue of disability (just the point made by Oliver [95]). [96] To those who intimately know the problems of stammering as a disability and as an impairment the EAT decision appears more based in the attitudes of the 1950s, clearly misunderstanding the nature of communication in the employment context by those who do stammer. The conclusion that we might draw is that - given the EAT's overturning of the ET in Wakefield - the most potentially successful type of claim appears to be those where the discrimination was recordable and obvious (as in harassment) rather than subtle and discreet (whether deliberate or not). If this remains the standard approach to be taken in future cases, the likelihood of the tribunal system affecting the speech disability landscape seems remote.

7. Towards an Ombudsman-like approach for disability discrimination?

The argument underpinning this essay is that a highly important factor at the heart of discrimination is the notion of 'merit' and its assessment. Speech disability helps show this in the clearest manner. That the more blatant forms of discrimination may have fallen away is true (in that equality as a goal is no longer controversial - so long as it does not involve positive action which remains controversial) but something more fundamental must continue to exist or we would have equality in practice rather than just in legislative form.

Merit and its assessment is highlighted in the Wakefield EAT decision - the belief that there can be no alternative to matching the particular notion of merit which an employer holds as appropriate. Similarly, in our judicial appointments project, it was a surprise to those assessing merit to be told that there existed, to others, female meritorious candidates who were not being 'picked up' by the appointment process. In Wakefield, the EAT replaced the concept of 'communication skill' with 'verbal skill' and - given the precedential value - made it difficult for future applicants to Employment Tribunals who stammer to object to the assessment of merit based upon oral skills in interview etc. Employers will not now have to investigate their own biases in assessing merit: the traditional stereotypes will be sufficient to protect them in litigation. Yet the evidence continues to be clear that while those who stammer suffer serious detriment in employment due to an inability to meet the presentational and communication expectations of the employer, they are often more than capable of operating effectively given sufficient appreciation of alternative solutions. Reading McCrudden's paper on institutional discrimination, one can see similarities between systemic discrimination through a variety of institutionalised behaviours in race and those now legitimate in speech after Wakefield. [97]

The current criticisms of the Equality and Human Rights Commission [98] may be explainable by a substantial cut in funding, but prior to its inception disability campaigners were concerned that the disability voice would be lost in the general 'discrimination' framework. [99] The Disability Rights Commission had been well regarded as an agency which undertook action in a number of ways, [100] from supporting litigation to promoting good practice. It was a relatively aggressive agency, where the structure of the organisation required at least half of the Commissioners to be disabled. The attitude towards disability of the EHRC certainly does not appear to be as pro-active as was the DRC. Further, a decision appears to have been made by the EHRC to disband its statutory Disability Committee, which Sir Bert Massie has suggested as "a bad decision" for which the commission had offered no explanation. … I can't but be suspicious about the motivation because there is no honourable motivation I can see." [101] Those wishing to assert equality for the speech (and other) disabled must be concerned that barriers are being rebuilt rather than broken down through the institutions which were designed to resolve disability discrimination.

More generally, what are the options, if speech disability is to be tackled in any meaningful way? The possibilities in the civil justice arena were well set out by Andrews: court proceedings (we include tribunal proceedings here), arbitration or mediation. [102] Court and tribunal proceedings are, as we have discussed above, expensive and far from ideal for discrimination cases. Andrews notes [103] the view of Jacob from the mid-1980s that the gates of justice should be opened wide, "to provide adequate and effective methods and measures, practices and procedures, reliefs and remedies, to deal with all justiciable claims and complaints", [104] but more recent perspectives take a more critical view of this court centred approach. Indeed it is surprising how many judges will mention in conversation that cases they hear should never have reached them, suggesting other and - they feel - more appropriate paths. [105] The view that the courts (and tribunals) are the most suitable location for all justiciable disputes is no longer tenable.

This leaves arbitration and mediation, the former having significant advantages in the commercial field [106] where a near court-like approach is taken [107] and the latter is frequently used in employment disputes (where, for example ACAS encourages involvement). The basic difference between the two approaches is that mediation encourages negotiated settlement through an intermediary, and arbitration imposes a settlement. Both require an active will to participate.

The ideal goal of dispute must surely be an agreed settlement which is satisfactory to both parties, or - if not to both parties - satisfactory to the public interest. Critics have suggested that in mediation such agreements may occur in a context where one party has a power advantage, which is indeed true, but the does not mean that agreement cannot be reached. This leaves those situations where agreement is not reachable, or where the employer refuses a mediation process, or where the public interest is better served by external involvement. Is arbitration a suitable method at this point, with perhaps enforceable participation? Employment matters do have such exemplars as in, for example, the Police Arbitration Tribunal [108] where police officers who do not have recourse to strike action have such a facility. For most employment matters, however, arbitration requires the consent of both parties before participation - the ACAS Arbitration Scheme for unfair dismissal and flexible working being one such forum - and thus miss out on the enforced inclusion of the employer which comes from a Tribunal ET1 form.

Might there be an enforced arbitration scheme which requires submission by the employer where there are disability discrimination claims? We suggest that this should be considered, particularly with an arbitrator expert in disability issues. The advantages could include:

  • Vexatious claims can be removed early in the process;
  • Codes of conduct might be utilised rather than legalistic statements;
  • Speedy resolution through relatively simple procedures;
  • Confidentiality for the applicant (that is, keeping rights given under Art. 8 ECHR and sensitive personal information relating to disability confidential under the Data Protection Act rather than losing them through the open justice route);
  • Arbitrators could question ingrained notions of 'merit' in employment rather than only look at formal processes (that is, they could consider whether institutionalised discrimination is present).

Such enforced arbitration systems are not unknown in the public sector (where the public interest is seen to be better served by these processes - for example, the security services at GCHQ [109]) and have been perceived by some as a better means of resolving disputes between the citizen and public bodies than more traditional methods. [110] In civil matters the Financial Ombudsman Service (FOS) operates in a relatively efficient manner and makes decisions according to good practice and industry codes [111] and although the Press Complaints Commission received criticism from many quarters, the use of a clear Editors' Code of Conduct resolved many problems in a common sense manner, and also in a way where the code has been updated and improved. [112] These Ombudsman schemes are not perfect mechanisms, but they allow the complainant an opportunity to access financial resolution (in case of the FOS) and also non-financial resolution without the burden of cost and/or litigation. Given that the evidence from employment disputes is that it is not always the financial aspect which is important to applicants, but having one's position verified, an enforced Ombudsman scheme may provide a better fit with disabled employee needs. The three 'victory' options which Renton listed (above) might all be made available through an Ombudsman scheme rather than only the third. However, perhaps the most important element would be that individual complaints would not be viewed solely within the one-to-one dispute of employee/employer, but could be set within the wider context of disability, and the need to assert a 'Fairer Britain' for the disabled who - evidence continuously demonstrates - are being failed by the current tribunal system. There is clearly a need to have a more social model of disability applied to the discrimination field where each case is not treated as a one-off incident, but where the wider context of discrimination can be viewed in an evidenced and measured manner, and each case is viewed in the context of reduced employment possibilities for the class in general.

The Judicial Appointments Commission approach which we discussed earlier is instructive for any future attempt to attack disability discrimination. It is an approach which re-assessed the nature of merit and - where it was enabled to [113] - can be argued to have made a difference to the type of individual who is being recruited to judicial roles. It has done this without quotas and without positive discrimination, simply through redefining the notion of merit. Such is surely the start of a better way than the failed employment tribunal model.

8. Conclusion

It is clear from the research literature that there are considerable problems for those who are speech disabled in the employment context. The general attitude towards those with a communication problem in a world where communication and appearance are important indicate that it is a disability which can have adverse effects upon career options and choices. It is, therefore, a disability which disability discrimination legislation is intended to confront. Looked at in the context of a disability framework, stammering exists as an impediment to normal interaction (that is as a medical problem, as yet not understood), but also as a response from the environment around it: without some understanding of how reasonable adjustment might be made in employment, it is not likely that discrimination can be overcome. The underlying problem, it is argued here, is that employers are seeking meritorious candidates (in an oral and visual culture) and speech disability affects the merit perceptions of employers. This makes it difficult to accommodate stammering, particularly in terms of first interview, but also throughout the employee's career.

We could, at this point, give up and suggest that those who stammer will always suffer discrimination of what is, essentially, an institutionalized kind due to the difficulty of their meeting merit requirements. However, it is suggested here that there is sufficient evidence that merit can be rejigged, given understanding and an institutional desire to do so. This was demonstrated in the NIJAC projects which the author undertook: merit is a social construct and can be reconstructed to suit. There is thus, we argue, the potential of a positive resolution of discrimination - although just how merit might be rejigged (that is, what might be the 'reasonable accommodation' necessary) is not dealt with in this paper.

The Employment Tribunal system, tasked with rectifying disability discrimination was argued to have failed, and did so particularly clearly in the decision of Wakefield where the Employment Appeal Tribunal demonstrated a lack of knowledge in understanding stammering as a disability, and how it might be accommodated in an employment context. This failure is not unexpected given the wider failure of the employment tribunal system to have substantially improved the disability employment context: discrimination of the disabled remains a substantial social problem.

If the tribunal system, with all its flaws, is incapable - through its individualistic approach to remedying a major social problem - of improving the lot of those who are disabled, is there a better way? I suggest that there is, using a more pro-active intervention in the workplace through enforced arbitration. Amongst the advantages of such an approach are that it removes the confrontational element of tribunal litigation, utilises experts in discrimination, and can operate with the social policy targets of fairer employment prospects for those who are disabled.

[1] Queen's University of Belfast

[2] For example the Section 9 of the Disabled Persons (Employment) Act 1944 required employers over a certain size "to give employment to persons registered as handicapped by disablement" through meeting a quote (around 3%). This did not require equality of employment opportunity. The same Act also reserved occupations for the disabled - car park and lift attendant - which indicated a less than flattering view of the abilities of the disabled. The Act was not particularly effective. See House of Commons Employment Committee, The Operation of the Disabled Persons (Employment) Act 1944, HC Paper 389, 1995. See also Waddington, L., "reassessing the employment of people with disabilities in Europe: from quotas to anti-discrimination laws", 18 Comp. Lab. L.J. 62 1996-1997.

[3] Riddell, S., et al. Research Report 59 Disability, Skills and Employment: A review of recent statistics and literature on policy and initiatives, Equality and Human Rights Commission, 2010.

[4] I have stammered since childhood. It is interesting when I look back and consider that I did not view the concept of disability as covering my speech problem, though speech has certainly always been disabling. It was only the Disability Discrimination Act 1995 which made me see some common ground between all those suffering from impairment. Partly, of course, you try to cope best with the hand life deals and it becomes 'normal'.

[5] How fair is Britain? Equality, Human Rights and Good Relations in 2010. The First Triennial Review , Equality and Human Rights Commission.

[6] How fair is Britain? Equality, Human Rights and Good Relations in 2010 . The First Triennial Review, Equality and Human Rights Commission, p 380.

[7] The terms are interchangeable - stammering is used in the UK, but stuttering in the US literature.

[8] British Stammering Association figures at

[9] Compare P Enderby, "Stammering: what research is telling us", British Stammering Association, 1996 with more recent genetics based research: Kang C et al (2010), "Mutations in the lysosomal enzyme-targeting pathway and persistent stuttering", NEJM 362:677-85; Fagnani C, 2011, "Heritability and environmental effects for self-reported periods with stuttering: a twin study from Denmark", National Centre for Epidemiology, Surveillance and Health Promotion, National Institute of Health, Rome, Italy.

[10] Craig A., Blumgart E. & Tran Y., "Resilience and Stuttering: Factors That Protect People From the Adversity of Chronic Stuttering", J Speech Lang Hear Res 2011;54(6):1485-1496.

[11] Butler, C., "Wanted - straight talkers: stammering and aesthetic labour", Work, Employment & Society, October 2014 28: 718-734.

[12] Collins C.R. & Blood G.W., "Acknowledgement and severity of stuttering as factors influencing nonstutterers' perceptions of stutterers", Journal of Speech and Hearing Disorders, Vol 55, 75-81, Feb 1990.

[13] It is not actually clear what adjustments might be made in a professional employment context. In discussion with my own employer neither the individual responsible for disability 'reasonable adjustments' asked me what I felt was appropriate. Given the nature of the role, my only suggestion (tongue in cheek) was 'someone to speak for me.'

[14] CP Atkins, RL Kent, "What do recruiters consider important during the employment interview", Journal of Employment Counselling, Sept 1988, Vol 25, pp 98 - 103.

[15] C. Warhurst & D Nickson, "Looking good, sounding right: style counselling in the new economy", 2001, The Industrial Society (now The Work Foundation).

[16] A. R. Craig, P. Calver; "Following Up on Treated Stutterers Studies of Perceptions of Fluency and Job Status", J Speech Hear Res 1991;34(2):279-284.

[17] That is the same skill set etc., but without fluent speech.

[18] The conclusion might be that all stammerers should utilise the technique ('heal yourselves'). Unfortunately it has relatively short term improvement outcomes.

[19] Hurst, M. I., & Cooper, E. B., 1983, "Employer attitudes toward stuttering", Journal of Fluency Disorders, 8, 1-12.

[20] Silverman FH & KK Paynter, "Impact of stuttering on perception of occupational competence", Journal of Fluency Disorders, 15 (1990), 87-91 at p89. See also Mitchella P.R., et al., "Speech impairment and workplace discrimination: The national EEOC ADA research project", Journal of Vocational Rehabilitation 23 (2005) 163-169 and Silverman F. & Bongey T., "Nurses' attitudes toward physicians who stutter", Journal of Fluency Disorders, 22, 61-62, 1997.

[21] Hayhow R., Cray A.N. & Enderby P., "Stammering and therapy views of people who stammer", Journal of Fluency Disorders, 27, 2002. More recent research finds similar outcomes - see Klein JF & Hood S.B., "The impact of stuttering on employment opportunities and job performance." Journal of Fluency Disorder, 2004; 29(4):255-73.

[22] Described in an early paper, "Store clerks' reaction to stuttering", McDonald ET & Frick JV, Journal of Speech Hearing Disorders, 19, 306-311, 1954.

[23] Turnbaugh K, Guitar B, Hoffman P, "The attribution of personality traits: the stutterer and nonstutterr", Journal of Speech and Hearing Research, 1981,

[24] Butler, C. "'University?… hell no!': Stammering through education", International Journal of Educational Research, Volume 59, 2013, Pages 57-65

[25] Leahy, M, "Attempting to ameliorate student therapists' negative stereotype of the stutterer", European Journal of Disorders of Communication, 29, 39-49 (1994).

[26] Boyle M.P., "Assessment of Stigma Associated With Stuttering: Development and Evaluation of the Self-Stigma of Stuttering Scale", (4S). J Speech Lang Hear Res 2013;56(5):1517-1529.

[27] Butler C., "Wanted - straight talkers: stammering and aesthetic labour", Work, Employment & Society, October 2014 28: 718-734.

[28] This mirrors my own experience. The only occasion where my letter of application mentioned a speech disability was the post for which I was not interviewed.

[29] The reader is pointed towards the British Stammering Association website. There is, of course, a measure of positivity encouraged here.

[30] Oliver M., "The social model of disability: thirty years on", Disability & Society, Vol, 28, No. 7, 1024-1026, 2013.

[31] World Health Organisation, 1980.

[32] Hurst, R. (2003) "The International Disability Rights Movement and the ICF", Disability and Rehabilitation, 25 (11-12), 572-576 at p573.

[33] Yaruss, J .S. & Quesal, R. W. (2004) "Stuttering and the International Classification of Functioning, Disability, and Health (ICF)", Journal of Communication Disorder, 37: 35-52. Badley, E. M. (1987). "The ICIDH: Format, application in different settings, and distinction between disability and handicap. A critique of papers on the application of the ICIDH", International Disability Studies, 9 (3), 122-125.

[34] De Kleijn-De Vrankrijker, M. (2003). "The long way from the International Classification of Impairments, Disabilities and Handicaps (ICIDH) to the International Classification of Functioning, Disability and Health (ICF)", Disability and Rehabilitation, 25: 11-12. p. 561-564 at 562

[35] Schneidert, M. Hurst, R., Miller, J., & Ustun, B. 2003, "The role of environment in the ICF", Disability and Rehabilitation, 25: 11-12. p. 588-595 at p589.

[36] (2006) C-13/05

[37] Waddington, L., "Case C-13/05, Chacon Navas v. Eurest Colectividades SA, Judgment of the Grand Chamber of 11 July 2006", 4 Common Market L. Rev. 487 (2007), p496.

[38] Preamble, (e), Convention on the Rights of Persons with Disabilities, 13 December 2006.

[39] McCrudden C., "Merit Principles", Oxford Journal of Legal Studies, Vol 18, Winter 1998, p579.

[40] Ong W., 1981, Fighting for Life: Contest, Sexuality, and Consciousness, Cornell University Press

[41] Lakatos I., Proofs and Refutations: The Logic of Mathematical Discovery, Cambridge University Press, 1976.

[42] Leith, P., et al., Propensity to Apply for Judicial Office under the new Northern Ireland Judicial Appointments System: A qualitative study for the Northern Ireland Judicial Appointments Commission , October 2008 Belfast: School of Law, Queen's University.

[43] See discussion of the Judicial Selection Framework in Judicial Appointments Commission for Northern Ireland , 2010/11 Annual Report The feedback reported here suggested that the assessment of competences was "challenging but fair".

[44] Leith, P., 'A Note on Using Vignettes in Socio-Legal Research', (2013) 19(3) Web JCLI

[45] Leith, P & Morison, J, Rewarding Merit in Judicial Appointments?. School of Law, Queen's University, Belfast, 2013. .

[46] There is a substantial literature on whether being female makes a difference to judicial outcomes. It is not clear that it does, though Lady Hale is certainly of the opinion that it can make a difference - see Fiona Woolf Lecture for the Women Lawyers' Division of the Law Society Women in the Judiciary 27 June 2014 at "I, too, used to be sceptical about the argument that women judges were bound to make a difference, because women are as different from one another as men, and we should not be expected to look at things from a particularly female point of view, whatever that might be. But I have come to agree with those great women judges who think that sometimes, on occasions, we may make a difference." What is not clear is not whether the result of adjudication is different between male and female, but whether they operate in different ways. Thus A may stammer/be female and B may not stammer/be male. They can achieve the same professional result, but not necessarily by doing each task in an identical manner.

[47] The Kings Fund, 2011, The future of leadership and management in the NHS. No more heroes. Report from the Kings Fund Commission on Leadership and Management in the NHS . Available at "The service also needs to recognise that the type of leadership the NHS requires is changing. The old model of 'heroic' leadership by individuals needs to adapt to become one that understands other models such as shared leadership both within organisations and across the many organisations with which the NHS has to engage in order to deliver its goals. This requires a focus on developing the organisation and its teams, not just individuals, on leadership across systems of care rather than just institutions, and on followership as well as leadership." [p ix]

[48] Malleson K., "Rethinking the Merit Principle in Judicial Selection", Journal Of Law And Society, Volume 33, Number 1, March 2006. At p135/6.

[49] Paterson A. & Paterson C., Guarding the Guardians? Towards an Independent, Accountable and Diverse Senior Judiciary, 2012.

[50] Anecdotally reported at "Millions of new mums believe they were denied work opportunities and they were forced to re-prove themselves after returning to work. Nearly seven in ten claimed to have been taken off their career path and put on what equality campaigners have branded the 'Mummy Track' where they are side-lined as less experienced colleagues were often promoted ahead of them."

[51] International Labour Organization, "Global Wage Report 2014/15, Wages and income inequality", 2014.

[52] Employment Tribunals and EAT Statistics, 2011-12, 1 April 2011 to 31 March 2012. Ministry of Justice. Note that only 2% of initial claims were successful in the tribunal, with 30% being settled through the mediation of ACAS. Figures from that date have been published in a quarterly format, and there has also been a very substantial fall in applications since fees were introduced. These 2011/12 figures are thus useful indicators of 'the problem' rather than the most up to date ones.

[53] Leith, P & Morison, J, "Rewarding Merit in Judicial Appointments?". School of Law, Queen's University, Belfast, 2013 at p53

[54] Sealy R., 2010, "Changing perceptions of meritocracy in senior women's careers", in Gender in Management: an international journal, Vol 25, No 3. p191

[55] p194

[56] Newman P., Releasing potential: Women doctors and clinical leadership, NHS Leadership Academy and NHS Midlands and East. October 2011

[57] One surprising - to us - conclusion of the project was the lack of female support for other women.

[58] Butler C., "Wanted - straight talkers: stammering and aesthetic labour", Work, Employment & Society, October 2014 28: 718-734.

[59] Tyrer's site is the standard location for legal analysis at www.stammering

[60] Whittick v British School of Motoring , Employment Tribunal, April 2002 (Case no. 3104185/01; Folio Ref: 14:228:38)

[61] Employment Tribunal, Case no. S/401513/99, February 2000

[62] Section D25(i) Guidance on matters to be taken into account in determining questions relating to the definition of disability. This has been replaced by "Equality Act 2010 Guidance on matters to be taken into account in determining questions relating to the definition of disability", Office for Disability Issues, HM Government, 2011.

[63] Employment Tribunal, Case no. 2500138/00, 4344/115, December 2001

[64] Employment Tribunal, case no. 1808186/2001, April 2002

[65] Employment Tribunal, Case No. 1803090/05, 2006

[66] Employment Tribunal, Case No. 1806514/02, July 2003

[67] HM Land Registry v Wakefield [2008] UKEAT 0530_08_1712 (17 December 2008)

[68] Employment Tribunal, Case No. 2513066/06, July 2007

[69] Butler, C., "Wanted - straight talkers: stammering and aesthetic labour", Work, Employment & Society, October 2014 28: 718-734. "This recruitment assessment held unless the men possessed skills which were scarce or valued by the employer ... It is then that employers were 'accepting' and supportive, and an audience will 'wait for words' or 'listen with effort'. This study suggests this is not the norm however, and for the majority of participants discriminatory behaviour was commonplace." [p728]

[70] In teaching I use supporting strategies such as a largish number of powerpoint slides. Given the ever present possible failure of speech, whether for a few seconds or longer, my feeling is that communication is enhanced by these. However, in end of module feedback, there are always a few students who complain. 'Too many slides!'.

[71] Middlemiss S., "Protection against discrimination on the ground of looks? Primmer v Mayflower Kebabs Ltd", Employment Law, Issue 80, October 2007.

[72] Tribunals were initiated under the Industrial Training Act 1964 but tasks were enlarged after the 'Donovan Report' - Royal Commission on Trade Unions and Employers' Associations, 1965-1968 (Chairman: The Rt. Hon. Lord Donovan), Cmnd. 3623, London, H.M.S.O., 1968. See a chairman's view at MacMillan J.K., Employment Tribunals: philosophies and practicalities, Industrial Law Journal, Vol. 28, No. 1, March 1999.

[73] Evidenced by the Gibbons Review: Gibbons M., "Better Dispute Resolution: A review of employment dispute resolution in Great Britain", Department for Trade and Industry, March 2007 at

[74] This, in fact, was one of the statements made frequently during the judicial appointments research project by a number of respondents.

[75] Equality Act 2010 Section 15: "(1) A person (A) discriminates against a disabled person (B) if - (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) cannot show that the treatment is a proportionate means of achieving a legitimate aim." Thus, for example, that it was proportionate and justified to refuse to place an employee who stammered in a role where fluent speech communication was important.


[77] Tribunals will, of course, make reasonable adjustments themselves, but there is no available evidence to suggest that this improves the situation for any particular stammering complainant. Note that in Wakefield the applicant did not wish to take part in the appeal process but provided textual comments. The EAT noted, "He wrote to the EAT, courteously explaining his reasons, which we respect. Those reasons are not based upon his disability." [para 31]. It is difficult to believe that speech disability had no part in excluding himself from this appeal.

[78] Renton D., 2008, "Deliver us from employment tribunal hell: employment law, industrial relations and the Employment Bill", Business School Working Papers UHBS 2008:3

[79] Gibbons M., 2007, Better Dispute Resolution: A review of employment dispute resolution in Great Britain, Depaterment of Trade and Industry.

[80] The Employment Act 2002 and Employment Act 2002 (Dispute Resolution) Regulations 2004.

[81] Hayward B, Peters M, Rousseau N & Seeds K (2004) "Findings from the survey of employment tribunal applications 2003", Department of Trade & Industry, Employment Relations Research Series no.33; Genn, H., & Genn, Y., (1989), "The Effectiveness of Representation in Tribunals", London: Lord Chancellor's Department.

[82] Hammersley G, Johnson J & Morris D (2007), "The influence of legal representation at employment tribunals on case outcome", Department for Business, Enterprise and Regulatory Reform, Employment Relations Research Series No. 84: "However, there would seem to be some indication that (as one would perhaps expect) a relatively large proportion of cases with high employer and low claimant day-to-day help and advice result in claimants being unsuccessful at hearing, whilst the proportion of private settlements is highest amongst cases where both sides are professionally or legally represented. The proportion of Acas settlements is highest amongst cases where both employer and claimant have lower levels of representation - though it must be remembered that our multivariate analysis does not support this finding from the (less robust) matched data in unfair dismissal cases."

[83] This includes following the model of detached arbiter rather than 'problem solver'. In Muschett v HM Prison Service [2010] EWCA Civ 25. Rimmer LJ outlined this perspective: 'It is not [the Employment Judge's] role to engage in the sort of inquisitorial function that [counsel for the appellant] suggests or, therefore, to engage in an investigation as to what further evidence might be available to one of the parties which, if adduced, might enable him to make a better case. Their function is to hear the case the parties choose to put before them, make findings as to the facts and to decide the case in accordance with the law…It is not his function to step into the evidential and factual arena'' Para 31. See the discussion in "Oy Judge! Stop cross-examining my witness!" in Hignett, R's blog 22 Apr 2014 Compare this with the view of Adler M. "Tribunals Ain't What They Used To Be", at

[84] Corby, S. and Latreille, P.L. (2012). Employment tribunals and the civil courts: Isomorphism exemplified. Industrial Law Journal, 41(4) 387-406.


[86] AAAS Zuckerman, 1996, "Lord Woolf's Access To Justice: Plus Ça Change ...", 59 Modern Law Review 773

[87] Haq & Ors v The Audit Commission [2012] EWCA Civ 1621

[88] Reported comments of Eileen Lavery, Head of Strategic Enforcement for the Equality Commission NI., June 2010. "The Commission supports cases on a strategic basis and one of the key reasons is to clarify aspects of the law where there is some uncertainty. A number of the cases included in the review which ran to hearing were significant in adding to our understanding of the law. Some of the cases are highly technical and can take some time to resolve."


[91] Archibald v Fife Council [2004] UKHL 32

[92] Archibald S., "A claimant's perspective: Archibald v Fife Council", Legal Bulletin, Issue 12. Legacy Edition; DRC Leg DRC Legal Achievements: 2000-2007.

[93] Often the legal complexity was driven - as Renton suggests - by employers bringing substantial legal expertise to tribunal litigation and then using the court appeal system afterwards. Comments often suggest that complexity simply appeared out of nowhere, a situation which can hardly be true.

[94] He notes, p15, that 91% of sex discrimination cases are brought by women. There is no suggestion of how these issues which relate to wider groups might be settled more simply.

[95] Oliver M., "The social model of disability: thirty years on", Disability & Society, Vol. 28, No. 7, 1024-1026.

[96] McCrudden C.," Institutional Discrimination", Oxford Journal of Legal Studies, (1982) 2 (3): 303-367.

[97] In my own case, being a very early user of email was of considerable aid and, of course, the fact that much of the academic role can be carried out through the written word and in relative isolation from colleagues. This has not to say that non- fluency has not been a major problem in my career in terms of both impairment and social context.

[98] See for example Lord Ousley's reported comments The Guardian, 28th< November 2012 and the government minister Marina Miller that the EHRC "had struggled to deliver across its remit or inspire confidence". The body's noble aims had "become lost in the mire".

[99] See Massie, B., "Delivering Effective Policies and Structures on Equalities and Human Rights", Equalities Conference, London, 4th February 2004. Also Malik M., 'Modernising Discrimination Law': Proposals for a Single Equality Act for Great Britain, International Journal of Discrimination and the Law December 2007 vol. 9 no. 2 73-94 noted that structural discrimination was unlikely to be successfully dealt with.

[100] The final issue of their Legal Bulletin looks with some pride at their operation. Legal Bulletin, Issue 12. Legacy Edition; DRC Leg DRC Legal Achievements: 2000-2007.

[101] Reported at

[102] Andrews N., "The Three Paths of Justice: court proceedings, arbitration and mediation in England", Springer, 2012. In fact, there are four paths since Andrews does not deal with tribunals. However, we can merge tribunals with courts.

[103] p199.

[104] Sir Jack Jacob, 'Justice Between Man and Man' (1985) 37 Current Legal Problems 211, at 230.

[105] In conversation one Court of Appeal judge suggested a case he had heard (which had been further appealed) would have been better resolved by the Financial Services Ombudsman. The difference in costs and time would, we agreed, have been very substantial.

[106] Particularly confidentiality and the ability to seek awards in other countries via the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the 'New York Convention').

[107] Note though that costs can be just as high as in court litigation since procedures emulate court proceedings.

[108] Though decisions are not binding upon the Home Secretary.

[109] Corby S., Public sector disputes and third party intervention", Research Paper prepared for ACAS, June 2003. At

[110] See, for example, The 2011 report from the Law Commission on Public Service Ombudsman at

[111] But see Gilad, Sharon (2009) "Juggling conflicting demands: the case of the UK Financial Ombudsman Service", Journal of Public Administration Research and Theory, 19 (3). pp. 661-680. Gilad notes that third party complaint handers overseeing private firms are involved in something of a dance with these firms. My argument does not suggest that all problems will be resolved by an imposed ombudsman scheme, but would expect there to be a significant social benefit from such a scheme over the current tribunal system. Further Gilad's firms are repeat players (with a high multiple of complaints) and build expertise in responding to the imposed ombudsmen, something which is less likely with discrimination complaints.

[112] The code has now been taken over by the newspaper industry's preferred self regulatory body, The Independent Press Standards Organisation. See

[113] That is, in the lower judicial roles.