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Employment Appeal Tribunal looks at test for justification in indirect discrimination claims
Adrian Fryer
Indirect discrimination occurs where an employer has a provision, criterion or practice (known as a ‘PCP’) which places people with a certain protected characteristic, and also places the person complaining, at a particular disadvantage when compared to people without that characteristic. An example might include a restrictive working pattern which women (who are acknowledged to statistically take the higher childcare burden) find more difficult to comply with than men. An employee impacted by this work pattern could allege indirect discrimination.
Employers facing an indirect discrimination claim can defend the claim if they can justify the unequal treatment as being a proportionate means of achieving a legitimate aim. The Employment Appeal Tribunal took a look at the test for justification in the recent case of Hilton-Webb v Minis Childcare. The Claimant raised multiple complaints of disability discrimination. She suffered from a visual impairment which amounted to a disability. The tribunal found in her favour in relation to a claim of indirect discrimination relating to the provision of printed documents in small fonts. The Respondent asserted that they printed documents in small fonts for reasons of management efficiency. The tribunal held that printing in small fonts was a PCP pursued by the Respondent. It placed the Claimant and those with her disability at a substantial disadvantage when compared with those who were not disabled. On the issue of justification, 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. The Employment Appeal Tribunal set out a helpful reminder of the different elements of the justification defence for indirect discrimination:
- The Respondent must assert and establish the aim.
- It is for the 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 tribunal to decide whether the adoption of the PCP was proportionate to achieve the aim.
Reviewing the tribunal’s reasoning in this case, the EAT held that the reasons did not explain why the tribunal stated that there was ‘no legitimate aim’. The Respondent had clearly put forward management efficiency as their reason for using small font sizes, and management efficiency had been found to be a legitimate aim in relation to another of the Claimant’s claims.
The claim was remitted back to the tribunal for reconsideration.