Minis Childcare Ltd v Hilton-Webb [2024] EAT 108 - this is a recent case where the original decision was remitted due to the Tribunal original decision found to required further clarity because the decision was insufficient to understand what they meant when it said that there was “no legitimate aim” for the “small font” PCP, in circumstances in which the respondent had asserted that the legitimate aim it pursued was “efficient management”.
The legal facts:
The claimant has Apert Syndrome which results in impaired vision. She required documents in at least 18 point font.
The respondent provided standard documentation in font sizes generally 11 or 12 point, but possibly as small as 10 point. This was identified as the "small font" practice. The respondent argued that the legitimate aim it pursued for the "small font" practice was "efficient management of the workforce."
The claimant did not inform the respondent that she had difficulty reading the small font sizes.
The claimant argued that the respondent presented no evidence that it applied the practice to achieve that legitimate aim.
The law applied
Section 19 of the Equality Act 2010 addresses the issue of indirect discrimination. It stipulates that a person (A) discriminates against another (B) if A applies a provision, criterion, or practice (PCP) that is discriminatory in relation to a relevant protected characteristic of B. This PCP is considered discriminatory if it is applied to persons both with and without the characteristic, places those with the characteristic at a particular disadvantage compared to those without, and cannot be justified as a proportionate means of achieving a legitimate aim. The relevant protected characteristics include age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation.
The Act further elaborates that for a PCP to be discriminatory, it does not require a serious, obvious, or particularly significant disadvantage; rather, it needs to put persons with a protected characteristic at a disadvantage because of that provision, criterion, or practice. The disadvantage does not need to be quantifiable and can include denial of an opportunity, deterrence, rejection, or exclusion. Importantly, the test of proportionality under Section 19(2)(d) involves determining whether the aim of the PCP is legitimate and whether the means of achieving it are appropriate and necessary.
In practical terms, indirect discrimination under Section 19 can be established without the need to demonstrate why the PCP puts the group at a disadvantage. This was exemplified in the case of Essop and others v Home Office (UK Border Agency); Naeem v Secretary of State for Justice, where it was sufficient for the claimants to show that the PCP put the affected group at a particular disadvantage, without needing to prove the reasons for this effect.
Furthermore, the concept of a PCP is broadly interpreted to include formal and informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications, or provisions. This interpretation aims to ensure that the protective nature of the legislation is not undermined by overly technical or narrow applications.
Failure to make reasonable adjustments, it is essential to identify a 'provision, criterion or practice' (PCP) that places a disabled person at a substantial disadvantage compared to non-disabled individuals. This identification is crucial as it triggers the duty to make reasonable adjustments under the Equality Act 2010. The first step in proving a failure to make reasonable adjustments involves establishing the existence of a PCP that disadvantages a disabled person. The PCP must be a practice with a degree of repetition and not merely a one-off decision unless it indicates how similar cases are generally treated or would be treated in the future. For instance, a requirement for all employees to work full-time could be a PCP if it disadvantages a disabled person who is unable to work full hours due to their disability. Once a PCP is identified, the claimant must show that this PCP places them at a substantial disadvantage in comparison with non-disabled people. The nature and extent of this disadvantage must be clearly understood to determine whether an adjustment could be considered reasonable. Furthermore, the tribunal assesses whether reasonable adjustments were possible and whether the employer failed to make these adjustments. The burden of proof initially lies with the claimant to show that adjustments were necessary. Once this is established, the burden shifts to the employer to demonstrate that the adjustments were either made or that making such adjustments was not reasonable in the circumstances.
Case law on legitimate aims and the proportionality test for indirect discrimination, including Hardy & Hansons plc v Lax [2005] and Heskett v Secretary of State for Justice [2020]
The ET ruling
The Court reasoned that producing standard documents in standard 10-12 point font sizes should not cause problems for those with visual impairments, as documents can be reprinted in larger fonts or provided electronically to be magnified as needed. The Court stated that if the Employment Tribunal concludes the respondent genuinely applied the "small font" practice as a means of achieving efficient management, it must then properly analyze whether the practice was a proportionate means of doing so.
The Employment Tribunal had dismissed the claim of failure to make reasonable adjustments because the respondent lacked requisite knowledge but upheld an indirect disability discrimination claim. The Tribunal reasoning was found to be insufficient to understand what they meant when it said that there was “no legitimate aim” for the “small font” PCP, in circumstances in which the respondent had asserted that the legitimate aim it pursued was “efficient management”.
The Court allowed the respondent's appeal and remitted the indirect discrimination claim back to the same Employment Tribunal to be redetermined in accordance with the Court's guidance on the law.
Disability discrimination claims can cause complex legal arguments to arise as in the case, the claim was brought for a failure to make reasonable adjustments and it was found that the criteria was not satisfied, hence the Tribunal dismissing the original claim but then finding there was a claim for indirect disability discrimination. We are able to assist with the preparations in bringing and defending disability discrimination claims, and cannot stress how important it is to ensure that the correct case is pleaded at the outset.
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