Employment

Employment: Ishola v Transport for London (TfL) [2020] EWCA Civ 112

Barbara Zeitler analyses the meaning of ‘provision, criterion or practice’ for employers when making reasonable adjustments in respect of a disabled person in regards to the case of Ishola v Transport for London (TfL) [2020] EWCA Civ 112.

The concept ‘provision, criterion or practice’ (‘PCP’) in s. 20 Equality Act 2010 (‘EqA’) is one of the three requirements in the creation of a duty to make reasonable adjustments in respect of a disabled person. A PCP also forms part of the definition of indirect discrimination in s. 19 EqA. In Ishola v Transport for London [2020] EWCA Civ 112, 7 February 2020, the Court of Appeal considered the meaning of the words ‘provision, criterion and practice’.

Transport for London (’TfL’) employed Mr Charles Ishola (‘CI’) as a customer service administrator. He suffered from depression and migraines. It was common ground that CI was a disabled person within the meaning of EqA’. He complained about the conduct of colleague. The complaint was not upheld. CI went on sick leave in May 2015. He did not return to work and did not engage with TfL’s occupational health assessment and sickness review procedures. In June 2016 CI was dismissed on the grounds of medical incapacity.

In Employment Tribunal (‘ET’) proceedings, CI complained, among other matters, that he had been subjected to disability discrimination for failure to make reasonable adjustments. He argued that TfL’s requirement for him to return to work without a proper investigation of his grievances amounted to a PCP. The ET held that the requirement was a ‘one-off act in the course of dealing with one individual’, a conclusion with which the EAT agreed.

While accepting that the concept of a PCP is to be interpreted widely and purposively, the Court of Appeal held that it was significant that Parliament chose to define claims based on reasonable adjustment and indirect discrimination by reference to the phrase PCP, not ‘act’ or ‘decision’ (para. 35).   In a reasonable adjustment context, the function of PCP was to identify what it was about the employer’s management of the employee or its operation that caused substantial disadvantage to the employee (para. 36). A PCP did not apply to every act of unfair treatment of an employee (para. 37). Having regard to the function and purpose of a PCP in the EqA, ‘all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated it if occurred again’. A ‘practice’ connoted ‘some form of continuum in the sense that it is the way in which things generally or will be done’ (para. 38). The ET, therefore, was entitled to conclude that the employer’s failure to investigate CI’s grievance was not a practice of requiring him to return to work without a proper and fair investigation into his grievances.

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