CA gives guidance on "provision, criterion or practice" meaning
Wednesday 4th March 2020
The CA in Ishola v Transport for London concluded that the ET had been entitled to find 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 EqA 2010.
Mr Ishola was employed by TFL as a customer service administrator. In April 2015, he made a complaint about the conduct of another employee, which was investigated but not upheld. Mr Ishola went on sick leave in May 2015, but refused to engage properly with TFL’s long-term sickness review or with its occupational health advisers. He was dismissed in June 2016. He raised grievances in April and May 2016 complaining of discrimination and harassment by those managing his sickness absence. TFL investigated the grievances, but not until after Mr Ishola had been dismissed, with a decision issued in July 2016.
Mr Ishola claimed that TFL had subjected him to disability discrimination. He argued that requiring him to return to work without a proper and fair investigation into his grievances was a PCP. This put him at a substantial disadvantage and reasonable adjustments should have been made. Mr Ishola contended that TFL should have investigated his grievances and provided him with an opportunity to return to work in a discrimination-free working environment. Both the ET and EAT disagreed.
In the CA, Mr Ishola argued that any decision or action with effects capable of remedy by reasonable adjustment qualified as a PCP. The CA disagreed, holding that the function of a PCP is to “identify what about the employer’s management of the employee or its operation causes substantial disadvantage to the disabled employee” and furthermore “to test whether the PCP is discriminatory or not it must be capable of being applied to others”.
While the CA acknowledged that a narrow interpretation should not be taken, Parliament had chosen not to use the words “act” or “decision”. Although a one-off decision or act may qualify as a PCP, it is not necessarily one.
The evidence showed that it was generally TFL’s practice to respond to grievances promptly and it was the particular timing and circumstances which explained why the grievances were not investigated prior to Mr Ishola’s dismissal, making this a one-off decision. The ET had, therefore, been entitled to conclude that there was no PCP.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.