Guidance on meaning of "provision, criterion or practice"
The Court of Appeal has held in Ishola v Transport for London that an employment tribunal was entitled to conclude that requiring an employee to return to work without a proper and fair investigation of his grievances was not a provision, criterion or practice (PCP) for the purposes of the Equality Act 2010, as it was a "one-off act in the course of dealings with one individual".
Mr Ishola was employed by Transport for London (TFL) in a customer services role. He made a complaint about the conduct of another employee and the matter was investigated but the complaint was not upheld. Mr Ishola was not satisfied with the investigation and went on sick leave. He did not return to work and was eventually dismissed on the ground of mental incapacity. During his absence he had raised grievances complaining of discrimination and harassment by the TFL employees who were responsible for managing the sickness absence.
Mr Ishola argued that TFL had subjected him to disability discrimination by way of a failure to make reasonable adjustments. He argued that requiring him to return to work without proper and fair investigation into his grievances was a PCP which put him at a substantial disadvantage. Both the tribunal and the Employment Appeal Tribunal (EAT) found that the alleged PCP was not made out.
Mr Ishola argued before the Court of Appeal that if an employer takes any decision or action with effects or impacts capable of remedy by making a reasonable adjustment, it qualifies as a PCP. The Court held that the tribunal had been entitled to conclude that TFL's failure to investigate grievances before the claimant's dismissal was not a practice of requiring him to return to work without a proper and fair investigation into that grievance. There was no evidence that this was the way that things were normally done; instead the evidence showed that, in practice, grievances were promptly responded to and investigated by TFL.
Take note: It follows from the decision in Ishola that a PCP will generally require an element of repetition. However, it is still possible for one-off acts to give rise to claims for direct discrimination or discrimination arising from disability.