One-off acts and discrimination

Ishola v Transport for London

For a one-off act to amount to a ‘provision, criterion or practice’ in a discrimination claim, there must be some indication of consistency in how similar cases are generally treated or how they would be treated in the future.

Employers have a duty to make reasonable adjustments if a 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 (Equality Act, s. 20). The concept of a PCP is also crucial to indirect discrimination claims.

Background

Mr Ishola, who is disabled, complained about the conduct of another employee which TfL investigated and did not uphold. Mr Ishola wasn’t satisfied and went on sick leave in May 2015. After 12 months TfL dismissed him on the grounds of medical incapacity in accordance with its sickness absence procedure. Mr Ishola brought tribunal claims arguing, amongst other things, that TfL had failed to make reasonable adjustments. It had applied a PCP of requiring him to return to work before his grievances had been properly and fairly investigated and this placed him at a disadvantage. Both the tribunal and EAT dismissed this aspect of his claim, finding that the failure to resolve the complaints before dismissal was a one-off act that only applied to Mr Ishola and as such was not a PCP. Mr Ishola appealed.

Court of Appeal decision

The appeal was dismissed.

However widely and purposively the concept of a PCP was to be interpreted, it did not, held the Court of Appeal, apply to every act of unfair treatment of a particular employee. All three words (provision, criterion and practice) carried the connotation of a state of affairs indicating how a similar case would be treated if it occurred again; although a one-off decision or act could be a practice, it was not necessarily one. Here there was no evidence of an expectation or assumption that Mr Ishola would return to work before his grievances had been investigated, nor was there evidence that this was the way in which things were generally done in practice or would be done in the future. This was a one-off decision in the context of dealing with Mr Ishola’s case and did not amount to a PCP.

Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2020/112.html

Comment

While it’s clear that courts and tribunals take a wide approach to what amounts to a PCP, this decision makes it clear that there are limits to the concept. In the context of grievances, this case also illustrates the importance of carrying out prompt investigations.