Ishola v Transport for London EWCA Civ 112; February 7, 2020

Implications for practitioners

This case concerned the framing of one-off acts or decisions by employers as a provision, criterion or practice (PCP), for the purpose of advancing claims of indirect discrimination or failure to make reasonable adjustments. In the CA judgment, Simler LJ provided some important guidance as to when singular decisions or actions by employers can be established as a PCP.

Facts

The claimant (CI) at all material times was a disabled person suffering from depression and migraines.

In April 2015 CI complained about the conduct of another employee of the respondent (TFL). In May 2015, after investigating the complaint, TFL found against CI. He was not satisfied with the outcome and went on sick leave in May 2015. During CI’s period of sickness absence in April and May 2016 he raised two further complaints about employees of TFL. In June 2016, after failing to engage CI in sickness absence review meetings or occupational health appointments, TFL terminated his employment on the ground of medical incapacity.

CI brought various claims against TFL including disability and race discrimination, harassment, victimisation, unfair dismissal and unlawful deduction from wages.

Employment Tribunal and Employment Appeal Tribunal

The claims were mostly dismissed by the ET. The EAT held that the ET erred in one aspect of its judgment; this was not relevant to the PCP issue that came before the CA.

CI averred that the complaints he raised in April and May 2016 were not properly and fairly investigated prior to his dismissal, and that TFL operated a PCP of requiring CI to return to work without first concluding a proper and fair investigation into his grievances. The ET held that this was not a PCP as it was a ‘one-off act in the course of dealings with one individual’. The EAT upheld this reasoning, stating that ‘the failure to resolve the April and May 2016 complaints before dismissal was not a PCP… It did not deal with any other individual apart from the claimant … although a one-off act can sometimes be a practice, it is not necessarily one’.

Court of Appeal

CI appealed on the ground that an on-going requirement or expectation that a person should behave in a certain manner, in this case return to work with outstanding grievances, is a practice within the meaning of s20(3) Equality Act 2010 (EA).

CI asserted that the tribunals took too narrow and technical an approach in determining a PCP. He stated that this narrow approach was inconsistent with the appropriate liberal reading of the EA, and therefore the definition of PCPs, in light of the legislation’s objective to protect employees from discrimination. CI made reference to paragraph 6.10 of the EA Statutory Code of Practice by the Equality and Human Rights Commission which states that the phrase PCP ‘should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, or qualifications including one-off decisions and actions …’

CI disagreed with the approach of the EAT in Nottingham City Transport Ltd v Harvey [2012] UKEAT/0032/12 to defining the term ‘practice’ in a PCP. In that case the EAT stated that practice ‘has something of the element of repetition about it’. It also held that if the practice relates to procedure, it needs to be applicable to other people not suffering the relevant disability, because disadvantage is determined by reference to a comparator and the comparator must be someone to whom, in reality or theory, the practice would also apply.

CI submitted that if an employer makes any decision or takes any action which has an effect capable of being remedied by a reasonable adjustment, it qualifies as a PCP. CI further submitted that an element of repetition is unnecessary, given that every action or decision taken by an employer can be assumed to be applied to a hypothetical comparator.

Lady Justice Simler disagreed with CI’s submission that all one-off acts remediable by a reasonable adjustment qualify as a PCP. She held that the legislation specifically uses the terms ‘provision, criterion and practice’ when defining failure to make reasonable adjustments and indirect discrimination, and does not use the terms ‘act’ or ‘decision’. Further, the word ‘practice’ would not ‘add to the words’ if all one-off decisions remediable by reasonable adjustments qualified as PCPs. Simler LJ held that all three words in PCP connote a ‘state of affairs, indicating how similar cases are generally treated or how a similar case would be treated if it occurred again.’ In relation to practice, she stated that this implies the way in which things are generally done or will be done. Simler LJ stated that it is not necessary for a practice to already have been applied to another person, if there is an indication that it would be done again in future if a similar case were to arise.

Simler LJ further held that where an employee is unfairly treated by an act or decision of an employer and neither direct discrimination nor disability-related discrimination is made out, it is ‘artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP.’

Comment

The analysis provided by Simler LJ in the CA judgment sets clear boundaries for the definition of PCP, a term not defined in the EA. Her guidance confirms that ‘one-off’ decisions or actions taken by an employer can only qualify as PCPs if there is indication that they would be applied in similar future hypothetical cases.

This article was first published in the Discrimination Law Association Briefing 935-947

Written by Yavnik Ganguly – Paralegal, Employment and Professional Discipline Team