In disability discrimination claims, employers have a duty to make reasonable adjustments if the disabled person has been put at a substantial disadvantage by a ‘provision, criterion or practice’ (PCP) imposed by the employer compared to someone who is not disabled [section 20 Equality Act 2010]. A PCP also forms part of the definition of indirect discrimination [section 19 Equality Act 2010].
In Ishola v Transport for London [2020], the question for the Court of Appeal was whether a PCP can be a one-off act, or if it had to be continuing acts.
Mr Ishola’s Claim
Mr Ishola worked for Transport for London as a customer service administrator. He had depression and migraines which made him recognised as disabled under section 6 of the Equality Act 2010.
In April 2015, Mr Ishola raised a grievance about a colleague which was investigated by TfL and not upheld. He was then signed off sick in May 2015. Whilst off sick he raised two further grievances. Mr Ishola did not return to work and did not engage with TfL’s occupational health assessment and sickness review procedures. In June 2016, he was dismissed on the grounds of medical incapacity.
Mr Ishola sued TFL on various grounds including disability discrimination for failure to make reasonable adjustments. He argued that TfL’s requirement for him to return to work without a proper investigation of his grievances amounted to a PCP which put him at substantial disadvantage compared to someone who is not disabled.
In the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT)
To qualify as discriminatory, the PCP must apply to a group of individuals with the same protected characteristics as the individual and must disadvantage the individual as part of that group. The ET and EAT said that TfL’s requirement for him to return to work before investigating his grievance was a ‘one-off act in the course of dealing with one individual’, it didn’t affect Mr Ishola as part of a group and so was not discriminatory. Mr Ishola appealed to the Court of Appeal arguing that a one-off act could amount to a PCP.
In the Court of Appeal
The Court of Appeal said that the concept of a Provision, Criterion or Practice must be interpreted widely and purposively. It is significant that Parliament chose to define claims based on reasonable adjustment and indirect discrimination by reference to these particular words and did not use the words ‘act’ or ‘decision’ in addition or instead of PCP. When it comes to reasonable adjustments, the function of PCP is to identify what it was about the employer’s management of the employee or its operation that caused substantial disadvantage to the disabled employee. The PCP serves a similar function in indirect discrimination, where particular disadvantage is suffered by some and not others because of an employer’s PCP. In both cases, the act of discrimination that must be justified is not the disadvantage which the person suffers but the practice, process, rule (or other PCP) through which the discriminatory act is done.
To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply.
A PCP does not apply to every act of unfair treatment of an employee. The words ‘Provision’, ‘Criterion’ and ‘Practice’ describe a decision that would have been applied in future to similarly situated employees. However, in the case of a one-off decision in an individual case where there is nothing to indicate that the decision would apply in future, the position is different. There must be some form of continuum in the sense that, it is the way in which things generally are done or will be done.
What this means
Not all one-off acts will qualify as a PCP. There must be a state of affairs indicating how similar cases are generally treated or how they will be treated in the future. In the context of grievances, this case also illustrates the importance of carrying out prompt investigations.
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