Ishola v Transport for London (Disability Discrimination)

In a reasonable-adjustments claim, the comparison for substantial disadvantage must address whether a practice has a greater adverse impact on persons with the claimant’s particular disability than on appropriate comparators. A tribunal errs if it compares only disabled and non-disabled employees on sick leave without addressing that issue.

Under section 15 of the Equality Act 2010, justification requires identification of a legitimate aim and a genuine proportionality assessment. That assessment must balance the relevant factors. An error will not justify interference where it plainly could not have affected the result.

A one-off act may sometimes amount to a PCP, but it does not necessarily do so. Administrative payroll failures may be the effective cause of unfavourable treatment, rather than something arising in consequence of disability.

The claimant, a former employee who had depression and migraines, brought claims including disability discrimination, unfair dismissal and wage claims. He had been absent on long-term sick leave and was dismissed after unsuccessful attempts to engage him in absence-management and occupational-health processes.

The Employment Tribunal upheld limited reasonable-adjustments and indirect-discrimination claims, but dismissed the claims concerning dismissal and most other allegations. It held, among other matters, that erratic sick-pay payments did not create group disadvantage and that dismissal was justified under section 15 of the Equality Act 2010.

The claimant appealed. The central issues included the correct comparator for the sick-pay reasonable-adjustments allegation, causation under section 15, and the adequacy of the Tribunal’s justification reasoning.

1. Appeal allowed in part. The Employment Tribunal made a material error in dismissing the reasonable-adjustments allegation concerning erratic contractual sick pay. It compared the effect of the payroll malfunction on all employees receiving sick pay, whether disabled or not. The required question was whether it had the same degree of adverse effect on employees absent because of a mental-health disability as on employees absent for other reasons.

2. That issue was remitted to the same Tribunal. No further evidence was required and there was no basis to conclude that the original Tribunal could not determine the short issue fairly.

3. The Tribunal was entitled to hold that the alleged failure to resolve two individual grievances before dismissal was not a PCP. Although a one-off act can sometimes be a practice, it is not necessarily one. It was also entitled to find that it was not reasonable to require further time for recovery where the evidence supported the conclusion that the claimant would not return until workplace issues were resolved in his favour.

4. On the section 15 sick-pay complaints, the Tribunal was entitled to find that the technical and administrative operation of the payroll system was the effective cause of the late and incorrect payments. The claimant’s disability and consequent sick leave did not necessarily supply the requisite causal connection.

5. The Tribunal’s section 15 dismissal reasoning was inadequate. It described the means rather than the aim and did not consciously conduct the required balancing exercise. The legitimate aim was nevertheless sufficiently clear: maintaining a fit workforce capable of operating the respondent’s service. On the overwhelming findings, a proper proportionality assessment could only have found dismissal proportionate. The error therefore could not have affected the result. The Tribunal’s separate conclusion that dismissal was fair under section 98(4) of the Employment Rights Act 1996 disclosed no equivalent error.

• Employment Appeal Tribunal: appeal allowed only in respect of the reasonable-adjustments allegation concerning erratic contractual sick pay; that issue was remitted to the same Employment Tribunal.
• Employment Tribunal (London South): decision dated 27 November 2017 and sent on 30 November 2017. It upheld limited claims but dismissed the dismissal and most disability-discrimination claims.