Indirect disability discrimination – what does this mean and how do I know whether I am doing it?
In a recent Employment Appeal Tribunal decision, it critically examined a decision of the Employment Tribunal, which had confidently concluded that an employer had indirectly discriminated against its visually impaired employee on disability grounds, by providing her with documents printed in small fonts. The EAT (equally confidently) sent the case back to the ET, with clear directions as to how it should have determined whether indirect discrimination had occurred.
The case is an excellent illustration of how difficult it can be to spot whether indirect discrimination has occurred, even for the likes of Employment Judges!
Complexities of indirect disability discrimination claims and the importance of clear and detailed reasoning in Employment Tribunal decisions: Minis Childcare Ltd v Ms Z Hilton-Webb [2024] EAT 108
The claimant, Ms Z Hilton-Webb, who has Apert Syndrome resulting in impaired vision, brought multiple complaints of disability discrimination against her employer, Minis Childcare Ltd. This appeal concerns the one complaint that succeeded.
The Employment Tribunal held that printing in small fonts was a provision, criterion or practice pursued by the respondent (a PCP). The Employment Tribunal found that the respondent’s PCP placed the claimant at a substantial disadvantage compared to non-disabled individuals. The respondent asserted that they printed documents in small fonts for reasons of management efficiency. However, the tribunal held “there is simply no objective justification for this. There is no legitimate aim, and it cannot be proportionate when the simple thing to do would be to provide documents in larger font”. The claimant’s claim succeeded.
The respondent appealed and the Employment Appeal Tribunal (EAT) Judge James Tayler stated that he “simply [does] not know” why the earlier Employment Tribunal concluded that the choice of font size by Minis Childcare Ltd was unwarranted and consequently discriminatory against the claimant. The EAT found that the Employment Tribunal’s reasoning was insufficient to understand what it meant by stating there was ‘no legitimate aim’ for the small font policy.
The judge therefore sent the case back to the tribunal to decide whether the nursery had a ‘legitimate aim’ behind the policy, such as efficient business management.
The Judge explained that, when looking at justification in indirect discrimination claims, the test can be broken down as follows:
- the respondent must assert and establish the aim
- it is for the employment tribunal to decide whether the aim is legitimate
- the respondent must establish that the PCP was a means of achieving that aim
- it is for the employment tribunal to decide whether the adoption of the PCP was proportionate to achieve the aim
Judge Tayler’s ruling emphasises the importance of clear and detailed reasoning in discrimination cases, particularly when assessing the legitimacy and proportionality of workplace policies.
