The Disability Discrimination Act 1995 provides that employers must make reasonable adjustments to a working environment for a disabled employee or job applicant where a provision, criterion or practice (“PCP”) places a disabled person at a substantial disadvantage in comparison to persons who are not disabled. The same duty is now contained in the Equality Act 2010.
In Nottingham City Transport Ltd v Harvey, Mr Harvey, who suffered from depression, returned to work following a period of absence. On his return he was not informed about the new procedure regarding the gate to the staff car park. The procedure provided that the entrance to the car park gate was to be opened using a swipe card and closed by the driver once they had driven through. Mr Harvey did not close the gate and was barred from the system. Assuming the gate was malfunctioning, he left work early on three occasions because he was anxious as to how he would get away from work. His employer subjected him to disciplinary proceedings and dismissed him for gross misconduct.
The Employment Tribunal (“ET”) held that his dismissal was unfair and also upheld his disability discrimination claim. The ET found that the disciplinary process was a PCP which placed him at a substantial disadvantage and that the employer had failed to make reasonable adjustments by dismissing Mr Harvey.
On appeal, the Employment Appeal Tribunal found the disciplinary process could not be a PCP. Mr Harvey was arguing that the disciplinary process was a “practice”. However, the EAT found that in order to be a practice it had to have “something of the element of repetition about it”. In Mr Harvey’s case they found that the flawed disciplinary process was a one-off and so could not amount to a “practice”.