Disability Discrimination: EAT Considers Whether One-Off Acts Amount To A Provision, Criterion Or Practice

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...