Minis Childcare Ltd v Z Hilton-Webb

For indirect discrimination under section 19 of the Equality Act 2010, the respondent must establish the aim pursued and that the provision, criterion or practice was a means of achieving it. The tribunal must decide whether that aim is legitimate and whether the means are proportionate.

An employer need not have articulated the aim when applying the practice, but it must be genuine. Efficient workforce management can be a legitimate aim for using standard-format documents. Whether that practice is proportionate requires an assessment of the general practice, rather than an assumption that documents could simply have been enlarged for one employee. Reasons must disclose the tribunal's conclusion on those issues.

The claimant, who has Apert Syndrome and impaired vision, brought multiple disability-discrimination complaints against her employer. The Employment Tribunal dismissed her reasonable-adjustments claim because the employer lacked knowledge of her reading difficulty. It nevertheless upheld an indirect-discrimination complaint concerning the employer's provision of documents in standard font sizes, described as the “small font” PCP.

The employer accepted the PCP and the resulting particular disadvantage. It relied on efficient management of its workforce as its legitimate aim. The Tribunal held briefly that there was no legitimate aim and no objective justification. The employer appealed, contending that the Tribunal had erred in its approach to legitimate aim and proportionality, and had given insufficient reasons.

1. The appeal was allowed. The indirect-discrimination complaint concerning the “small font” PCP was remitted to the same Employment Tribunal for redetermination.

2. Under section 19(2)(d) of the Equality Act 2010, the respondent must assert and establish its aim. The Employment Tribunal decides whether that aim is legitimate. The respondent must also establish that the PCP was a means of achieving the aim, while the Tribunal decides whether its adoption was proportionate. The distinction between aim and means is important, consistently with Heskett, [2020] EWCA Civ 1487.

3. An aim need not have been expressly considered when the PCP was applied. It must, however, be genuine and legitimate. Efficient management of the workforce was capable, as a matter of law, of being a legitimate aim for producing standard documents in standard font sizes. It may be efficient to avoid producing a range of formats that are not required.

4. The Tribunal's statement that there was “no legitimate aim” was ambiguous. It did not reveal whether the Tribunal had overlooked the employer's asserted aim, treated efficient management as incapable of legitimacy, considered it incapable of justifying this PCP, or found insufficient evidence that the PCP pursued that aim. All but the last would be errors of law, and its reasons did not permit the EAT to identify its conclusion.

5. If the employer establishes that the PCP genuinely pursued efficient management, the Tribunal must reconsider proportionality. The ability to provide larger-font documents does not alone answer that question, because indirect discrimination concerns the general PCP and its application to all affected persons. Providing a larger-font document only to the claimant would instead be a reasonable adjustment, but that claim had failed for lack of requisite knowledge.

• Employment Appeal Tribunal: Allowed the employer's appeal and remitted the successful indirect-discrimination complaint for redetermination: [2024] EAT 108.
• Employment Tribunal, London South (Croydon): Dismissed the reasonable-adjustments claim for lack of knowledge, but upheld the indirect-discrimination complaint concerning documents in small font sizes.