234: Court of Appeal clarifies whether a one-off act can amount to a PCP
Employers have a duty to make reasonable adjustments where a disabled person is placed at a substantial disadvantage by the operation of a provision, criterion or practice (PCP). In Ishola v Transport for London (TfL), the Court of Appeal has provided clarification on whether a one-off act by an employer in the course of dealings with a single employee can amount to a PCP.
Mr Ishola made a complaint against another employee which was investigated but not upheld. He was not satisfied with this outcome and went on sick leave. TfL commenced its sickness absence procedure. Mr Ishola did not engage with this process and raised several grievances about the employees who were managing it, complaining that he had no confidence that his grievances would be dealt with satisfactorily. After more than 12 months’ absence, he was dismissed on the grounds of medical incapacity.
Mr Ishola subsequently brought various claims, including a claim that TfL’s requirement for him to return to work without a proper and fair investigation into his grievances was a PCP which put him at a substantial disadvantage. The Employment Tribunal and the Employment Appeal Tribunal (EAT) both held that this requirement was not a PCP because it was a one-off act in the course of TfL’s dealings with one individual employee.
Mr Ishola’s appeal has now also been dismissed by the Court of Appeal. He argued that all one-off acts or decisions by an employer which could be remedied by making a reasonable adjustment qualify as a discriminatory PCP. Terminating his employment whilst a grievance was outstanding amounted to a PCP, and TfL should have made the reasonable adjustment of resolving this grievance. The Court of Appeal rejected this argument, ruling that a PCP will only be established where there is some form of continuum in the sense of how things generally are or will be done by an employer. Although this will apply to some one-off acts in the course of dealings with an individual employee, it will not apply to one-off acts where there is no indication that the same decision would apply in future. In this case, there was no evidence that TfL’s failure to investigate grievances before Mr Ishola’s dismissal was the way things were generally done or would be done in the future. The only reason his final grievance was outstanding was because of the timing and circumstances of that complaint. There was therefore no PCP.
This case provides welcome clarification of what can amount to a PCP. The Court of Appeal emphasised that in both reasonable adjustment and indirect discrimination claims, the function of a PCP is to identify precisely what it is about the employer’s management of the employee that causes a substantial disadvantage to that employee. A one-off act relating to an individual employee will not be a PCP unless there is an element of repetition. However, it is important to note that one-off acts in relation to an individual employee may still give rise to claims for direct discrimination or discrimination arising from disability.