Court of Appeal considers the meaning of Provision, Criterion or Practice in Equality Act claims
14th February, 2020
The Court of Appeal in Ishola v Transport for London, has held that the concept of a provision, criterion or practice within the meaning of the Equality Act 2010 did not apply to every act of unfair treatment of an employee.
The Claimant, Mr Ishola, worked for the Respondent, Transport for London (TfL), in various roles from 2008 onwards. He was recognised as suffering from a disability (depression and migraines) under the Equality Act 2010.
In April 2015, Mr Ishola made a complaint about a colleague (P), which was investigated by TfL and then rejected. Mr Ishola was then signed off on sick leave in May 2015, and lodged a grievance about another colleague (D) about the way the grievance investigation had been handled. A different employee (F) then took over the investigation. Mr Ishola later complained about F and an another employee (B) was appointed as his people management adviser.
Mr Ishola was assessed twice by TfL’s occupational health service in August 2015 and January 2016 as being unfit to return to work. He was then subsequently dismissed by TfL in June 2016 on medical capability grounds and he brought various claims in the Employment Tribunal, which included a claim for failure to make reasonable adjustments under the Equality Act 2010.
Employment Tribunal (ET) decision
Under Section 20 of the Equality Act 2010, 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.
Mr Ishola argued that TfL operated a PCP of requiring him to return to work without concluding a proper and fair investigation into his grievances.
The Tribunal found that TfL had made serious errors in the handling of Mr Ishola’s grievance and criticised D’s handling of the complaint and F’s subsequent handling of the process. However it found that P’s conduct towards Mr Ishola had been reasonable and that his dismissal had not been discriminatory or unfair.
The Tribunal found that requiring Mr Ishola to return to work before investigating his grievances could not constitute a PCP. Instead it “was a one-off act in the course of dealings with one individual”.
Employment Appeal Tribunal (EAT) decision
The EAT noted that it was clear that there were only two outstanding grievances that the respondent had addressed before the Tribunal held that it had been open to the Tribunal to decide, without error of law, that the failure to resolve Mr Ishola’s complaints before his dismissal was not a PCP. TfL had not dealt with any other individual apart from the appellant and, although a one-off act could sometimes be a practice within the meaning of a PCP, it would not necessarily always be one.
Court of Appeal (CA) decision
Mr Ishola appealed to the Court of Appeal (CA) arguing that the one-off act could amount to a PCP.
The CA agreed that there had been no error of law in this case. The CA confirmed that a PCP will not apply to every unfair act. The word “practice” connoted some form of continuum in the sense that it was the way in which things generally were, or would be, done and “although a one-off act or decision could amount to a practice, it was not necessarily one”.
The Tribunal had therefore been entitled to conclude that TfL’s failure to investigate a grievance before Mr Ishola’s dismissal was not a practice of requiring Mr Ishola’s to return to work without a proper and fair investigation into that grievance. There was no evidence that there was a PCP in this case.
The CA noted that TfL’s evidence showed that, in practice, it promptly responded to and investigated grievances raised by its workers. The particular timing and circumstances of the grievance in question explained why it had not been investigated prior to Mr Ishola’s dismissal and made it a one-off decision
What does this decision mean for employers?
This case confirms that that not all one-off acts will qualify as a PCP and that 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.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.