Can a one-off decision amount to a provision, criterion or practice?
An employer is under a duty to make reasonable adjustments in circumstances where a provision, criterion or practice (PCP) puts a disabled person at a substantial disadvantage compared to non-disabled people. The Statutory Code of Practice says ‘PCP’ can include policies, rules, practices and arrangements, including one-off decisions. In Ishola v Transport for London the Court of Appeal considered whether a one-off decision amounted to a ‘PCP’.
The employee was absent due to ill health in May 2015 after a complaint he made against a colleague was rejected. He suffered with depression and migraines, and he was disabled under the Equality Act 2010. After going on sick leave, he raised a further grievance about the handling of the investigation. He refused to co-operate with occupational health and refused to engage with any of his employer’s efforts to get him back into work. Occupational health’s assessment was that he was unfit to return to work because of the unresolved workplace issues. In late 2015, an error was made with the payment of Mr Ishola’s sick pay.
After receiving an invitation to a meeting where dismissal was a potential option, he raised a further complaint about another manager who was involved in managing his absence. Transport for London didn’t formally investigate the complaint, prior to the employee’s dismissal. Nevertheless, the complaint was largely addressed by the fact that this manager was replaced and a different manager appointed to deal with the management of the employee’s absence, and who ultimately made the decision to dismiss him for incapacity.
The employee commenced proceedings in the employment tribunal, including for failure to make reasonable adjustments under the Equality Act 2010. He argued that Transport for London’s requirement that he return to work, without proper and fair investigation of his grievance, was a PCP. He said that a reasonable adjustment would have been to investigate his grievance properly to allow him to return to a discrimination free environment. The tribunal found that this was not a PCP, rather it was a one-off act in the course of dealing with one individual.
The Court of Appeal agreed with the tribunal that the decision to dismiss the employee, without fully investigating the final grievance, was a one-off decision, and not a PCP. It didn’t apply to anyone else, and was unlikely to, as it not Transport for London’s usual practice to dismiss employees without investigating their grievances.
This case is quite fact sensitive and needs to be read with an element of caution. Proceeding to dismissal whilst relevant grievances remain outstanding will rarely be appropriate, and there is a need for particular care to be taken where dismissals involve disabled employees or serial complainers. In this case, the employee had raised a number of grievances against different managers involved in dealing with his sickness absence. With the exception of the last grievance, all had been resolved, albeit not to the employee’s satisfaction, before he was dismissed. These were exceptional circumstances.
If you would like further information, contact Marie Allen on 01473 298126 or by email [email protected].
