Ishola v Transport for London

A provision, criterion or practice under the Equality Act 2010 connotes a state of affairs indicating how similar cases are generally treated, or would be treated if they arose. A practice therefore involves some continuum, although it need not previously have been applied to another person.

A one-off act or decision can amount to a practice where it indicates how a future similar case would be treated. It does not necessarily do so. An isolated act of unfair treatment cannot be converted by abstraction into a discriminatory practice where nothing indicates repetition or future application.

The alleged practice must identify the rule, process or way of doing things which causes the relevant disadvantage and must be capable of application to an actual or hypothetical comparator.

The claimant, who had depression and migraines, remained absent from work for more than a year before the respondent dismissed him for medical incapacity. His Employment Tribunal claims included disability discrimination, failure to make reasonable adjustments, unfair dismissal and related complaints.

The Employment Tribunal held that the respondent's failure to determine a late grievance before dismissal was a one-off act concerning one individual, rather than a provision, criterion or practice. The Employment Appeal Tribunal, Kerr J, upheld that conclusion in UKEATPA/0184/18/RN, although it remitted an unrelated issue.

The claimant appealed on the single ground that the tribunals had adopted an unduly narrow approach. He contended that the respondent operated a practice of requiring him to return to work before properly and fairly investigating his grievances. The central issue was when a one-off act or decision can constitute a practice for the purposes of section 20(3) of the Equality Act 2010.

1. Appeal dismissed. Simler LJ held that the Employment Tribunal was entitled to find that the failure to investigate the claimant's grievance of 30 May 2016 before dismissal was not a practice for the purposes of section 20(3) of the Equality Act 2010. Sir Jack Beatson agreed.

2. The expression “provision, criterion or practice” consists of broad, overlapping words which must receive a wide and purposive construction. They nevertheless retain their ordinary meaning. Parliament did not provide that every act or decision would constitute a PCP. The statutory Code of Practice could not justify treating every one-off act as a practice merely because one-off acts may fall within the expression.

3. A PCP identifies the practice, process, rule or other state of affairs under, by or in consequence of which the disadvantageous act occurs. It is not simply the resulting disadvantage or impact. It must be capable of application to another person because the statutory comparison requires an actual or hypothetical comparator to whom the PCP would also apply.

4. All three statutory words connote a state of affairs indicating how similar cases are generally treated or would be treated if they occurred. A practice involves a continuum: it is the way things generally are or will be done. Actual repetition is unnecessary, but there must be some indication that the conduct would recur in a future similar case. A one-off decision can therefore be a practice, but is not necessarily one. British Airways Plc v Starmer [2005] IRLR 862 was explained on that basis, while the approach in Nottingham City Transport Ltd v Harvey UKEAT/0032/12 was applied.

5. The respondent's evidence showed that grievances were ordinarily answered and investigated. The timing and circumstances of the late grievance explained why its investigation concluded after dismissal. There was no evidence that the respondent expected employees generally, or would expect a future comparable employee, to return before proper investigation of a grievance.

6. Any error would in any event have been immaterial. The pleaded disadvantage and proposed adjustment concerned resolution of the grievances, rather than alteration of the sickness-absence process. The Tribunal had found that further time would have made no difference because the claimant was unlikely to return unless the grievances were resolved to his satisfaction. It was entitled to decide the claim as lucidly pleaded and argued and to conclude that requiring the respondent to wait longer was not a reasonable adjustment.

1. Court of Appeal (Civil Division): The appeal was dismissed. The Employment Tribunal was entitled to find that the isolated failure to complete investigation of the late grievance before dismissal was not a provision, criterion or practice. [2020] EWCA Civ 112

2. Employment Appeal Tribunal: Kerr J held in UKEATPA/0184/18/RN that the Employment Tribunal had been entitled to classify the failure as a one-off act rather than a practice. An unrelated error was identified and remitted.

3. Employment Tribunal: Most of the claimant's claims were dismissed. It found limited failures to make reasonable adjustments and corresponding indirect discrimination, but rejected the alleged PCP concerning investigation of the grievances as a one-off act involving one individual.