Court of Appeal holds that a one off act by an employer will not always qualify as a "provision, criterion or practice" under the Equality Act 2010

Ishola v Transport for London

The Court of Appeal has provided guidance on what can amount to a ‘provision , criterion or practice’ for reasonable adjustment claims, holding that one off acts by an employer will not always be enough to amount to liability.

Sections 20 and 21 of the Equality Act provide that employers have a duty to disabled employees to make reasonable adjustments where a disabled person is placed at a substantial disadvantage by:

• An employer’s provision, criterion or practice (‘PCP’).
• A physical feature of the employer’s premises.
• An employer’s failure to provide an auxiliary aid.

The Claimant complained about the conduct of another employee which the Respondent investigated and did not uphold. The Claimant was not satisfied with the investigation or the outcomes and went on sick leave in May 2015. After 12 months the Respondent dismissed the Claimant on the grounds of medical incapacity in accordance with its sickness absence procedure.

The Claimant brought a number of claims including alleging that the Respondent’s requirement for him to return to work without a proper and fair investigation into his grievance was a PCP which put him at a substantial disadvantage compared to someone who was not disabled. The Employment Tribunal disagreed with this, holding that this was instead a one-off act in the course of dealings with one individual.

The CoA upheld the tribunal’s decision and dismissed the appeal. The court noted that there is no definition of ‘provision, criterion or practice’ in the Equality Act but highlighted the significance of Parliament choosing these words specifically, rather than ‘act’ or ‘decision’. The court analysed the wording of PCP and held that some form of continuum is implied, in the sense that it is the way in which things are done generally.

It emphasised that although a one-off decision or act can amount to a PCP, it does not follow that all one off acts or decisions will qualify and the relevant question in determining whether a PCP is discriminatory or not, is whether it is capable of being applied to others. The court found that a PCP can arise where there is an indication that the same course of action would be done again in future, if a hypothetical similar case arises. It is not therefore the case that The PCP must actually apply to someone else. No evidence of a PCP in this case was found by the court.

This decision clarifies that a PCP requires an element of repetition and a reminder that one off acts relating to an employee will not always amount to a PCP. Employers should however remain mindful as this decision is of course fact dependent and this may not be the case if there is any indication that the act would apply in the future.