Ishola v Transport for London

The Court of Appeal dismissed the claimant's appeal against the Employment Appeal Tribunal and the Employment Tribunal on the single ground that the tribunal had erred in law when it concluded there was no "provision, criterion or practice" (PCP) under section 20(3) Equality Act 2010 consisting of a requirement to return to work before grievances were properly and fairly investigated. The court held that the words "provision, criterion or practice" must be given a purposive but ordinary-language construction and do not extend to every one-off act or decision. A "practice" carries the connotation of a state of affairs or continuing way of doing things that would or could be applied again; a purely one-off act in relation to a single individual is not necessarily a PCP.

The court further held that, even if a PCP had been established, the Employment Tribunal’s factual findings (that the outstanding grievance was raised late, had been promptly reallocated for investigation, and that it was unlikely resolution would have enabled the claimant to return) meant that allowing more time would not have removed the substantial disadvantage complained of and would not have changed the outcome. Accordingly the appellant could not show he suffered a substantial disadvantage caused by a PCP for which a reasonable adjustment (waiting for resolution) was reasonable and practicable.

Background and parties: The claimant, employed by the respondent for almost eight years, was a disabled person suffering from depression and migraines. After going off sick on 12 May 2015 he did not return and was dismissed for medical incapacity on 24 June 2016. He brought multiple claims including disability discrimination, failure to make reasonable adjustments, indirect discrimination, harassment, victimisation, unfair dismissal and unlawful deduction from wages. Earlier proceedings produced a liability judgment on 5 October 2016 and a later Employment Tribunal judgment on 27 November 2017 largely dismissing the third claim save for limited findings in respect of reasonable adjustments and indirect discrimination.

Procedural history: The Employment Tribunal dismissed most of the third claim. The Employment Appeal Tribunal (Kerr J) remitted one issue that was not relevant to this appeal. The claimant obtained permission to appeal to the Court of Appeal on a single ground concerning the meaning and scope of a "provision, criterion or practice" (PCP) under the Equality Act 2010 in the reasonable adjustments context.

Nature of the appellate claim: The appellant contended that the employer operated a PCP consisting of an expectation that he should return to work without a proper and fair investigation of grievances raised on 12 April and 30 May 2016. He argued that an ongoing requirement or expectation of return to work despite outstanding grievances was a practice within s.20(3) Equality Act 2010 and that the reasonable adjustment of investigating and resolving grievances before requiring return to work should have been made.

Issues framed by the court:

• What is the proper construction of "provision, criterion or practice" in the Equality Act 2010, particularly whether it includes one-off acts or decisions?
• Whether, on the facts found by the Employment Tribunal, the respondent operated a PCP of requiring return to work before proper investigation of grievances.
• If a PCP existed, whether the Tribunal's findings on substantial disadvantage and reasonableness precluded the claimed reasonable adjustment of waiting for grievance resolution.

Court’s reasoning: The court held that while the statutory phrase should be construed broadly, its ordinary meaning and function requires more than any single one-off act: "practice" implies some continuity or a manner of handling similar cases such that it would apply again to a hypothetical comparator. The court accepted that a one-off act can sometimes be a practice (as in British Airways Plc v Starmer) but it is not necessarily one. In the present case the Tribunal was entitled to find that the failure to investigate the 30 May grievance before dismissal was an individual one-off episode in the course of dealings with the claimant, that grievances were normally investigated promptly and that the 30 May grievance was raised late and principally concerned a particular People Management Adviser who was promptly replaced.

Moreover, even if a PCP had been established, the Tribunal had found that it was highly unlikely any further delay to investigate would have enabled the claimant to return because the claimant would not have been satisfied by any outcome and had not engaged with occupational health or the review meetings. Given those findings, requiring the respondent to wait longer was not a reasonable adjustment and would not have made a material difference to the dismissal decision.

Relief sought: The appellant sought to overturn the Tribunal and EAT conclusions and to establish a PCP so as to obtain a remedy for failure to make reasonable adjustments. The Court of Appeal refused that relief, dismissing the appeal.

Appeal dismissed. The Court of Appeal held that the phrase "provision, criterion or practice" in sections 19 and 20 of the Equality Act 2010 must be given a purposive but ordinary-language construction; a PCP typically denotes a state of affairs or way of doing things that can apply generally or would be applied again, and does not automatically cover every one-off managerial decision. The Employment Tribunal was entitled to find that the failure to investigate the 30 May 2016 grievance before dismissal was an individual, one-off occurrence and not a PCP. Further, even if a PCP had been established, the Tribunal’s factual findings showed that waiting for grievance resolution would not have removed the substantial disadvantage or altered the dismissal outcome, so no reasonable adjustment was required.

Appeal to the Court of Appeal from the Employment Appeal Tribunal (Kerr J, UKEATPA/0184/18/RN). Underlying Employment Tribunal decisions included a liability judgment dated 5 October 2016 and a further Employment Tribunal judgment dealing with the third claim promulgated on 27 November 2017. The EAT had upheld the Tribunal in relation to the PCP issue but remitted one unrelated point; the Court of Appeal ([2020] EWCA Civ 112) dismissed this appeal.