Employment and Immigration Law Update – Disability: provision, criterion or practice

The Court of Appeal looks at the question of what actions amount to a ‘provision, criterion or practice’ for the purpose of an employer’s duty to make reasonable adjustments.

Ishola v Transport for London [2020] EWCA Civ 112

Facts

The claimant had complained about the conduct of a colleague, but his complaint was not upheld by his employer. He was not satisfied with either the investigation or the outcome, and subsequently went off sick. He was eventually dismissed for reasons of incapacity, having failed to engage with the respondent’s sickness and occupational health assessment processes.

During his period of sickness absence, he raised grievances complaining about discrimination and harassment on the part of those who were managing his sickness absence. He later brought various tribunal claims against the respondent, including for a failure to make reasonable adjustments.

It was claimed that the requirement for him to return to work without carrying out a proper and fair investigation into his grievances amounted to a ‘provision, criterion or practice’, placing him at a substantial disadvantage to non-disabled employees and giving rise to the duty to make reasonable adjustments. This argument was rejected by an employment tribunal, which held that the respondent’s decision was a one-off act in the course of dealing with the individual and not a PCP. The tribunal’s decision was upheld by the EAT. The claimant appealed again to the Court of Appeal.

Court of Appeal decision

The Court rejected the argument that all one-off acts or decisions qualify as a PCP. The words ‘provision, criterion or practice’ should be construed widely, but the use of these words in the legislation was significant. In the context of the duty to make reasonable adjustments, the function of the PCP is to identify what it is about the employer’s management of the employee or its operation that causes substantial disadvantage to the disabled employee. To test whether a PCP is discriminatory or not it must be capable of being applied to others; it does not apply to every act of unfair treatment of a particular employee. A PCP does not arise where an employer takes a one-off decision in an individual case with no indication that the decision would apply in the future.

The Court was satisfied that the employer’s failure to investigate grievances before the claimant’s dismissal was not a practice of requiring him to return to work without conducting a proper and fair investigation into that grievance. The evidence showed that in practice, grievances were promptly responded to and investigated by the respondent. The dismissal of the claimant while he had a complaint outstanding was a one-off decision in the course of the employer’s dealings with him, not a PCP.

Consequences

This decision does not mean that a one-off decision or act is never a PCP, only that it is not necessarily one. It means that potential claimants have an additional hurdle in establishing a claim for breach of the duty to make reasonable adjustments, if their claim relates to an employer’s PCP. They will need to show that their treatment forms part of a pattern of behaviour or practice that is at least capable of being applied to others. In most cases this will probably require evidence that it has in fact been applied to others. Of course, a one-off decision could also give rise to a claim for direct disability discrimination, or discrimination arising from disability.

This article is from the February 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.