The employer used normal font sizes in documents, 10-12 point. The EAT implied that this was not likely to be indirect disability discrimination under s.19 EqA, because use of these font sizes in documents for people generally was likely to be justified. Producing documents in a larger font size for the claimant could be required as a reasonable adjustment. However, her reasonable adjustment claim had failed because the employer did not have the requisite knowledge of her disability and disadvantage.
2024, Employment Appeal Tribunal, [2024] EAT 108. Full decision: www.bailii.org/uk/cases/UKEAT/2024/108.html
Facts
The claimant had Apert Syndrome, resulting in impaired vision. She complained that her employer provided documents in “small” font sizes. The documents were 10 to 12 point. A witness of the employer said documents were provided in standard font sizes, generally 11 to 12. The claimant told the tribunal she needed a minimum of 18 point to read documents.
The claimant brought various disability discrimination claims. The only one upheld by the employment tribunal (ET) was indirect disability discrimination (s.19 EqA). The ET said there was “simply no objective justification” for using the small font sizes. The ET continued: “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 [employer] at the time of the events in question.” The employer appealed to the Employment Appeal Tribunal (EAT) against this decision.
At the relevant time, the claimant had not told her employer that she had difficulty reading standard documents because of the font sizes used. The ET rejected her claim for reasonable adjustments on the grounds that the employer did not know, and could not reasonably have been expected to know, that the font size put the claimant at a substantial (ie more than minor or trivial) disadvantage. This decision was not appealed to the EAT.
Held: The tribunal’s decision did not adequately deal with whether the use of “small” font sizes generally was justified, as regards indirect discrimination under s.19. The EAT sent the issue back to the tribunal to reconsider.
EAT decision
(Briefly, indirect discrimination is where a provision, criterion or practice (PCP) is applied to people generally, but puts people with a protected characteristic at a particular disadvantage. The employer etc has a defence if it shows that the PCP is a proportionate means of achieving a legitimate aim, known as “justification”.)
The employer accepted that it applied a PCP of providing documents with a “small” font size, and that the PCP placed the claimant at a substantial disadvantage in comparison with people who are not disabled by having Apert Syndrome [§7]. The dispute was whether the PCP was justified.
“Reality check”
Before considering whether the ET decision should legally be overturned, the Employment Appeal Tribunal (EAT) first gave a “common sense” view of the case.
The EAT pointed out that the employer did not know that the claimant had difficulty reading the documents it produced for all staff. They were in standard font sizes for word processors. Most organisations produced their documents in these font sizes. The ET decision was in the usual 12 point font. The EAT continued:
26. Producing standard documents in such standard font sizes should not cause problems for those with visual impairments because it should be easy to reprint documents in a larger font size or to provide them in an electronic format that can be magnified when required by a person with a visual impairment.
27. Indirect discrimination is about the application of a PCP to a group of people which disproportionately affects those who share a protected characteristic. The way to avoid the discrimination is to adopt a different PCP that does not result in such disparate impact. The PCP is no longer applied to anyone. What would that mean in this case? Should all documents be printed in 18 point, or larger for those who have more severe visual impairments? Should the documents be printed in a range of sizes, and different formats? Commons sense [sic] suggests that there should be nothing objectionable to providing documents in a standard format provided it is made clear that they can be provided in any format that can reasonably be produced if required by an employee who requires it, including those with disabilities. That is typically the territory of reasonable adjustments; and as is commonly the case, making the adjustment should not be problematic if the employer knows it is required.
The appeal
The employer had appealed against the ET’s decision that using “small” font sizes was not justified, ie was not a proportionate means of achieving a legitimate aim.
The “aim” argued by the employer was the “efficient management” of its workforce [§11, 32]. It was not clear what the ET meant by saying there was “no legitimate aim”. Even if one interpreted this in a way that did not involve an error of law, the ET’s reasons did not explain why it said there was “no legitimate aim”. The appeal must therefore succeed.
Also the current reasoning on proportionality could not stand:
42. … The fact that documents could have been provided in larger fonts does not answer the question because this would have to be done for all employees, by disapplying the PCP, which might not be proportionate. The provision of large font documents for the claimant alone would be a reasonable adjustment; a claim that failed because of the respondent’s lack of requisite knowledge. If the Employment Tribunal concludes that the [employer] did apply the PCP with a legitimate aim it should redetermine the issue of proportionality.
The case should be sent back to the ET to reconsider.
My comments
This case seems to indicate that lack of knowledge of the disability or disadvantage is not a defence to indirect disability discrimination (although that was not contested). More: Knowledge of disability in indirect discrimination.
However, this is likely to be of only limited use to disabled claimants because the employer’s use of documents in “small” fonts generally for people could be justified. To be required to produce large font versions for the claimant specifically, as a reasonable adjustment, the employer would need actual or constructive knowledge of the disability and disadvantage. This case illustrates well how an employer etc may find it easier to justify indirect discrimination compared with more specific disability claims: Justification defence for indirect discrimination is easier than for other disability claims.
