One-off acts by an employer in the course of dealing with one employee can, but will not always, amount to a provision, criterion or practice (or “PCP”).

THE FACTS

Mr Ishola, who suffers from disabilities, was employed by Transport for London. He raised a complaint about another employee which was investigated but not upheld. He went on sick leave, and did not return to work.

Mr Ishola’s sickness absence was managed by a process of referrals to occupational health and management review meetings. Mr Ishola did not engage with the process – he did not attend review meetings or occupational health appointments – and raised several complaints about the employees managing the sickness process. After a 12 month absence, Transport for London decided that there was no prospect of a return to work in the foreseeable future and terminated Mr Ishola’s employment on the grounds of medical incapacity.

Mr Ishola issued several claims in the employment tribunal. Most of his complaints were dismissed. One of his complaints was that Transport for London had imposed a requirement on him to return to work without a proper and fair investigation into his grievances, and that this was a PCP which put him at a substantial disadvantage in comparison to persons who were not disabled. If this had been the case, Transport for London would have been required by disability discrimination legislation to make reasonable adjustments to the PCP.

The employment tribunal held that Transport for London did not operate a PCP because the alleged requirement was a “one-off act in the course of dealings with one individual”.

Mr Ishola’s appeal to the EAT was unsuccessful, and he appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal. Agreeing with the EAT, the judge held that a one-off decision or act can amount to a PCP, but this will not always be the case. The words “provision”, “criterion” and “practice” all have connotations of a state of affairs, indicating how similar cases are, or would be, treated. There must therefore be some form of continuum in the sense of how things generally are or will be done by the employer. While it is not necessary for a PCP to have been applied to anyone else, a one off act or decision, applying to only one employee, will not amount to a PCP if there is no indication that the same act or decision would apply to similar cases in the future. In Mr Ishola’s case, there was no evidence to suggest that Transport for London’s alleged failure to investigate grievances before Mr Ishola was dismissed was the way that things were generally done or would be done in the future.

WHAT DOES THIS MEAN FOR EMPLOYERS?

This case will be helpful for employers facing claims that they have failed to make reasonable adjustments or that they have indirectly discriminated on the basis of a one-off act or decision which only affects one employee. By not getting over the PCP hurdle it means that these alleged one off acts cannot be the subject of a discrimination complaint before the employment tribunal. While this claim was about disability discrimination, the concept of a PCP is required across all the protected characteristics to found an indirect discrimination claim, so this case has application beyond just disability. There is no need for an employee or complainant to identify a PCP in direct discrimination or discrimination arising from a disability claims so this case does not change the prospects of success where those heads of claim are being argued.

Ishola v Transport for London [2020] EWCA Civ112