Hello and thank you for joining us for our case of the week. Last week we had the case of Mrs M Dobson v Michael C Law Firm where a solicitor was made redundant soon after telling her manager she was pregnant.  For anyone that missed it, you can find it here. This week we are looking at disability discrimination in an Employment Appeal Tribunal (EAT) case Minis Childcare Ltd and Ms Z Hilton-Webb, The case concerns indirect discrimination and “small font” PCP (provision, criterion or practice).

Background

The Respondent, Minis Childcare Ltd, operates a nursery for pre-school children across two sites. The Claimant, Ms Hilton-Webb, was employed by the Respondent from 10 December 2018 until 14 June 2019 as a Nursery Assistant. Prior to her employment with the Respondent, she had over 4 years’ experience working as a Nursery Support Worker in a school.

The Claimant was born with Apert Syndrome, a genetic disorder that causes deformity to the skull and limbs. The condition causes several physical impairments, including: impaired vision, impaired hearing, severe facial disfigurement, and impaired manual dexterity/fine motor skills.

The Claimant’s impaired vision affected her in the following ways:

  1. She wore spectacles, but even with corrective lenses, her distance vision was only 6/18, not 20/20. This meant that what someone with no visual impairment could see at 18 metres, she needed to be at 6 metres to see.
  2. She had both a convergent and a divergent squint, which meant it took more time to focus when looking from one thing to another at varying distances.
  3. She had no depth perception as she could only use one eye at a time, causing images to appear fuzzy.
  4. She could not see well enough to be allowed to drive and struggled to read standard size print. Font size 18 was the easiest for her to read and was the size recommended for her in school.

Because of her visual impairment, the Claimant had difficulty reading small text. She felt particularly pressurised at having to read text provided to her in small font during meetings and when asked to sign meeting notes.

The Respondent tended to produce documents in sizes 10-12 font which was too small for the Claimant to read. The Claimant in this case felt aggrieved that the Respondent did not ask her about her disabilities and accommodations at the start of her employment.

Employment Tribunal

The Claimant made several complaints to the ET of failure to make reasonable adjustments, indirect discrimination, harassment and victimisation. The Respondent accepted that the Claimant was a disabled person under the Equality Act 2010 due to the impairments but did not accept that it had knowledge of the disadvantage.

The ET dismissed the majority of the Claimant’s claims on the ground that they were unfounded. Her claim for failure to make reasonable adjustments was also dismissed, due to the Respondent’s lack of requisite knowledge of the impairment. The ET, however, upheld the indirect disability discrimination claim.

The Respondent provided standard documentation in font sizes that were 10-12 point.  The ET referred to this as the “small font” provision, criterion, or practice (PCP). The Respondent accepted that it applied the PCP of producing documents with small font sizes for the Claimant and others and that the PCP put the Claimant, and would put others with Apert Syndrome, at a particular disadvantage in comparison with those who do not have Apert Syndrome. The Respondent asserted its ‘legitimate aim’ for applying the PCP was “efficient management.”

The ET found in the Claimant’s favour and held that “…with regard to the small font sizes, 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.  It is unfortunate that the Claimant simply did not explain her difficulty with documents in small font size to the Respondent at the time of the events in question.”

Employment Appeal Tribunal

The EAT found the ET’s reasoning was unclear regarding its statement that there was “no legitimate aim” for the “small font” PCP and that the ET dealt with the indirect discrimination claim very briefly. The EAT Judge did not consider the ET’s reasons explained why there was “no legitimate aim” and therefore the Respondent’s appeal must succeed and the complaint be remitted to the same ET for reconsideration.

Takeaway Points

Cases concerning indirect discrimination are dealt with under Section 19 of the Equality Act 2010. Indirect discrimination is about the application of a PCP to a group of people which disproportionately affects those who share a protected characteristic, including disability.

The question for the ET was whether the Respondent had a legitimate aim and whether the application of the PCP was a proportionate means of achieving that aim.

It is for the ET to decide whether the aim is legitimate. The legitimate aim must be genuine and a means of achieving the aim. ‘Proportionate’ is an appropriate and necessary means of achieving a legitimate aim. ‘Necessary’ does not mean that the PCP is the only possible way of achieving the legitimate aim; it is sufficient that the same aim could not be achieved by less discriminatory means.

The documents provided to all staff by the Respondent, which were printed in standard font sizes of approximately 10 to 12 point are font sizes commonly used by most organisations, and the ET’s judgment itself was published in 12 point font.

The issue was, the Respondent was unaware that the Claimant had difficulty reading the documents. Producing documents in these standard font sizes should not pose problems for those with visual impairments, as it is a typically straightforward solution to reprint them in a larger font or to provide them in electronic format that can be magnified as needed.

This complaint could have been completely avoided if the Claimant felt supported at the beginning of her employment via a medical questionnaire, or, she raised the issue regarding the font size directly to her employer!