Was childcare provider justified in printing documentation in small font size?

The recent appeal case of Hilton-Webb v Minis Childcare highlights the importance of employers considering whether they can justify workplace requirements or practices which may disadvantage certain groups of people.

Background

Under the Equality Act 2010, indirect discrimination occurs when the effect of a requirement or practice imposed by an employer puts workers with certain protected characteristics (such as race, age, gender, disability etc.) at a disadvantage.

An example of this is a requirement for employees to work full-time, which could disadvantage women since women, as a whole, bear a greater part of domestic and caring responsibilities than men, and are therefore more likely to want to work part-time.

The employer will have a defence against a claim for indirect discrimination if it can show that the requirement or practice is justifiable. To be justifiable, the employer must be able to show that it had a legitimate aim in imposing the requirement or practice and that it was a proportionate means of achieving that aim (the Justification Defence).

Facts

Ms Hilton-Webb (the Claimant) is a disabled person due to having Apert Syndrome, which results in several physical impairments, including in relation to her vision. 

Minis Childcare (the Respondent) had a practice of printing documents in small font for reasons of management efficiency. Ms Hilton-Webb required documents to be in a font size of a minimum of 18 points to read them. She did not expressly raise this with Minis Childcare.

Ms Hilton-Webb brought claims in the Employment Tribunal for disability discrimination, including a claim that she had been subjected to unlawful indirect disability discrimination due to Minis Childcare’s practice of printing documents in small font.

Employment Tribunal

The Employment Tribunal held that Ms Hilton-Webb had been subject to indirect disability discrimination by Minis Childcare providing documentation with small font sizes. The Judge concluded that ‘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’.

Employment Appeal Tribunal (EAT)

Minis Childcare accepted that it had a practice of providing documents with a small font size and that this placed Ms Hilton-Webb at a substantial disadvantage in comparison with other people who are not disabled by having Apert Syndrome.

However, Minis Childcare appealed on the grounds that the Employment Tribunal had failed to properly assess whether its aim of efficient management was legitimate and whether providing documentation with a small font size was a proportionate means of achieving that aim.

The Employment Appeal Tribunal upheld Minis Childcare’s appeal on the basis that the Employment Tribunal’s reasons did not explain why it stated that there was no ‘legitimate aim’ and that its reasoning on proportionality could not stand.

The EAT remitted the case to the Employment Tribunal to be redetermined.

Comment

As long as a worker is disadvantaged by a requirement or practice, they do not have to share the protected characteristic of the group disadvantaged by it to bring a claim for indirect discrimination. Further, the employer does not need to be aware of the disadvantage for a claimant to be successful in such a claim.

It is therefore advisable for employers to consider the rationale behind any requirements, practices, acts, decisions, and policies that could disadvantage a group of people based on a protected characteristic and determine:

1. The aim of the requirement, practice, act, decision, or policy
2. Whether the aim is proportionate to the disadvantage potentially suffered by the group
3. Whether there are any alternative means of achieving the aim that either eliminates or alleviates the potential disadvantage