Isholo v Transport for London - discrimination: provision, criterion or practice

The Court of Appeal has upheld earlier decisions that a provision criterion or practice (PCP) can be established by one-off acts committed by an organisation, but not always.

Under sections 20 and 21 of the Equality Act 2010, organisations have a legal duty to make reasonable adjustments to assist disabled employees where a PCP places them at a substantial disadvantage. If reasonable adjustments are not made, the organisation could be liable for a claim of disability discrimination.

There is no clear definition within the Act of what can amount to a PCP. That said, it is understood that the primary function of a PCP is to identify what aspect of the employee’s management, or the organisation’s operation, led to the disadvantage in context with failure to make reasonable adjustments or indirect discrimination claims.

FACTS

The claimant in this case, who was considered disabled due to depression, was dismissed on the grounds of capability after taking 12 months of sick leave. This had commenced following the outcome of a grievance he had raised against another employee. Although the organisation had investigated his complaints, they did not uphold the grievance, leading to the claimant being very unsatisfied by the outcome. He went on to raise several additional grievances.

During an Occupational Health assessment, the claimant outlined that these ‘workplace issues’ were the cause of his depression and he was unlikely to improve, and therefore return to work, until these issues had been addressed. Following his dismissal, the claimant brought numerous claims to the employment tribunal (ET), including failure to make reasonable adjustments. He asserted that he had been asked to return to work from his sick leave without a proper and fair investigation being conducted into his grievances, which was a PCP that had put him at a substantial disadvantage.

ET

The tribunal disagreed. They found that no PCP had been put in place because this alleged requirement, that the claimant return to work despite not being happy with the ongoing grievance issues, was a one-off act. They also commented that, from the evidence presented to them, even if the outstanding grievances had been resolved prior to his dismissal it was unlikely that the claimant would have returned to work anyway. Therefore, if the organisation had allowed him a longer period of sick leave as a potential reasonable adjustment, it would not have made much difference to the situation.

EAT

The claimant appealed to the Employment Appeal Tribunal (EAT), who dismissed his appeal.

In forming their decision, the EAT considered if a PCP could be established even in circumstances were it was a one-off act. Ultimately, they found that this could be the case if there is an indication, within a hypothetical similar scenario, that such a course of action would happen again. For example, in Lamb v Business Academy Bexley, the EAT held that a grievance procedure that was continually delayed as a result of poor communication, and lack of understanding on how it worked in practice, was sufficient to amount to a PCP as there was a chance the disadvantage to an employee with a mental disability formed as a result could arise again.

When applied to this case, the organisation’s conduct had amounted to a one-off act with no indication it would happen again in the future. The EAT also commented that the claimant would likely not have returned to work unless all grievance outcomes were ‘to his satisfaction’.

COURT OF APPEAL

The claimant appealed again on two arguments. He stated that one-off acts that could lead to a remedy for failure to make reasonable adjustments could qualify as a PCP. Alternatively, he said that the organisation had expected him to return to work despite the lack of a proper and fair investigation into his numerous complaints, which was not just a one-off act. The Court dismissed both of these arguments.

The Court again addressed the issue of what amounts to a PCP, outlining that the act in question must be capable of being applied to other individuals in this position. If a claimant was unable to establish this, it would be ‘artificial and wrong’ to convert a one-off act into the application of a discriminatory PCP, and to do so was not the aim of reasonable adjustments legislation.

The Court also found that no evidence had been presented which confirmed the claimant had been expected to return to work whilst his grievances were outstanding, nor was there any evidence that this was how the organisation generally handled these situations. If anything, the organisation had responded promptly, and was only delayed due to claimant’s circumstances.

Note for employers 

This case seems to confirm that in order for a PCP to arise, it needs an element of repetition. Organisations may breathe a sigh of relief at this news, however they should not get too complacent. One-off acts could still give rise to separate discrimination claims and, therefore, care should always be taken in these situations. This outcome also highlights the importance of following clear grievance procedures and ensuring that complaints are investigated within a reasonable period of time.

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