Not all one-off acts will be a ‘provision, criterion or practice’

The Court of Appeal (“CA”) in Ishola v Transport for London (“TFL”) has given guidance on the meaning of ‘provision, criterion or practice’ (PCP), an essential element for claims of indirect discrimination and failure to make reasonable adjustments.

In this case, the Claimant was signed off work and raised a number of grievances against his colleagues, none of which were upheld.  One of the grievances focused on a particular colleague but had also raised concerns about another colleague which were not investigated. Further, TFL responded to this grievance outside of its usual 28-day timeframe.

The Claimant was subsequently dismissed (fairly) on medical capability grounds and brought various claims including the failure to make reasonable adjustments. The Claimant alleged that the PCP was requiring him to return to work without a proper and fair investigation into his grievance.

The CA held that it was significant that Parliament had not chosen to use the word ‘act’ or ‘decision’ in this context.  It held that PCP cannot apply to every unfair act and that the wording of PCP connotes some form of continuum in the sense that it is the way in which things generally are, or will be, done. The CA found no evidence that there was a PCP in this case and, in fact, found that the Respondent dealt with grievances in a timely manner. The CA agreed with the EAT that “although a one-off decision or act can be a practice, it is not necessarily one”.

This case will be welcome news to employers.  In Lamb v The Business Academy Bexley, the EAT made clear that a one-off decision can be a PCP.  However, this case highlights that not all one-off acts will qualify and that there must be a state of affairs indicating how similar cases are generally treated or how they will be treated in the future.