Ms Z Hilton-Webb v Minis Childcare Ltd — 2021

Ms Hilton-Webb was employed by Minis Childcare Ltd from 10 December 2018 until her dismissal took effect on 14 June 2019. The tribunal accepted that she was disabled by Apert Syndrome and related impairments, and that the respondent knew she was disabled, but it found that the respondent did not have actual or constructive knowledge of the specific substantial disadvantages later relied on for the reasonable adjustments complaint.

Most of the case concerned probation meetings, observations, written feedback, a performance improvement plan and later safeguarding concerns. The tribunal found that some matters amounted to unfavourable treatment for the purposes of section 15, including the move to the Nursery Assistant role, the PIP and later observations, the written warning and suspension, but held that the respondent had shown legitimate aims and that its actions were proportionate. Those aims included performance management, assessing suitability during probation, safeguarding children in its care, and investigating and responding to parental complaints.

The direct disability discrimination complaint failed because the tribunal did not accept that the respondent treated the claimant less favourably because of disability, or that it assumed she had a cognitive impairment. The reasonable adjustments complaint also failed. The tribunal found that providing documents in small font and giving oral instructions in the classroom could place the claimant at a disadvantage, but concluded that the respondent did not know, and could not reasonably have been expected to know, of the relevant disadvantage for the purposes of the duty to make adjustments.

The indirect discrimination complaint succeeded only in part. The tribunal found that the requirement to provide documents in small font size put disabled people and the claimant at a disadvantage and was not objectively justified. The other PCPs relied on were either not made out as disadvantageous on the evidence or were justified by the respondent's operational, performance management and safeguarding aims. The judgment left remedy to be agreed by the parties or determined at a later remedy hearing.

Harassment was dismissed because the tribunal found the treatment complained of was part of performance management and it was not reasonable for it to be regarded as creating a hostile or humiliating environment. Victimisation was also dismissed. The tribunal held that the 6 May 2019 complaint about bullying and harassment was not a protected act in the Equality Act sense, and although the later express allegation of disability discrimination at the 28 May 2019 disciplinary hearing was a protected act, no detriment flowing from it was proved.