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Martin Khoshdel discusses the case of Ishola v Transport for London [2020] EWCA Civ 112 that provides some guidance on the concept of Provision, Criterion or Practice (PCP).

The case of Ishola v Transport for London [2020] EWCA Civ 112 provides some guidance on the concept of Provision, Criterion or Practice (PCP). Below is a discussion on the latest case on the topic.

What is the case about?

Mr Ishola was at all material times a disabled person. Transport for London (TFL) dismissed him on grounds of medical incapacity. A number of claims were brought by Mr Ishola where most of his complaints were dismissed but the first ET judgment upheld his claims in one minor respect. The ET held, in relation to TFL’s duty to make reasonable adjustments under section 20 of the Equality Act 2010, that there was no provision, criterion or practice ("PCP") operated by TFL because the alleged PCP was "a one-off act in the course of dealings with one individual". The EAT upheld that conclusion.

Mr Ishola appealed on the ground that “too narrow and technical an approach was taken to the reasonable adjustments claim in that the Tribunals below should properly have found that [TFL] operated a PCP of requiring the claimant to return to work without concluding a proper and fair investigation into his grievances raised on 12 April 2016 and 30 May 2016”, which in any event he said were not properly investigated.

What did the Court decide?

The Court of Appeal decided at paragraphs 37 to 39 of the Judgement:

“37. In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP.

 

38. In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that “practice” here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or “practice” to have been applied to anyone else in fact. Something may be a practice or done “in practice” if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one.

39. In that sense, the one-off decision treated as a PCP in British Airways Plc v Starmer [2005] IRLR 862 is readily understandable as a decision that would have been applied in future to similarly situated employees. However, in the case of a one-off decision in an individual case where there is nothing to indicate that the decision would apply in future, it seems to me the position is different. It is in that sense that Langstaff J referred to “practice” as having something of the element of repetition about it. In the Nottingham City Transport Ltd v Harvey UKEAT/0032/12 case in contrast to Starmer, the PCP relied on was the application of the employer’s disciplinary process as applied and (no doubt wrongly) understood by a particular individual; and in particular his failure to address issues that might have exonerated the employee or give credence to mitigating factors. There was nothing to suggest the employer made a practice of holding disciplinary hearings in that unfair way. This was a one-off application of the disciplinary process to an individual’s case and by inference, there was nothing to indicate that a hypothetical comparator would (in future) be treated in the same wrong and unfair way.”

Commentary

The case sheds some guidance on the interpretation of a PCP. Perhaps too often PCPs were cited without much consideration as to whether or not it was in fact capable of amounting to a PCP. The Court of Appeal has been clear that for there to be a valid PCP made out for a claim to succeed, it needs to be more than a one off decision. However, this is so generally speaking.

One off actions or decisions are capable of amounting to a PCP. This is dependent on the circumstances. Decisions which are on the face of them one off incidents may be PCPs where they apply to other employees, contemporaneously and/or in the future. That is how the Court of Appeal interpreted the case of Starmer. Rightly so, when it is analysed. An act or decision is capable of being a PCP, even if it was a one off incident, when it is readily and consistently applied to other employees. It must be an established decision which will be applied again. The Court’s focus was on whether or not the decision was repeatedly applied. If the act or decision were applied to an employee once, and in the future applied to other employees, then that would likely qualify as a PCP.

There may be some grey area though. If an act or decision were applied to one employee on one occasion, and the same act or decision were applied again to the same employee but on a future occasion, would that qualify as a PCP? It will depend on the amount of time passed, whether there was any material difference. The difficulty will be whether or not it is a PCP or a straightforward direct discrimination act. This will need to depend entirely on the facts of a particular case.

The distinction the Court of Appeal has drawn, which employees and claimants need to be alive to, that all one off decisions or actions are not necessarily going to qualify as PCPs. They are capable of doing so but in order to do so, they need to have an established and repetitive nature to them.

Undoubtedly this will require the Employment Tribunal to scrutinise all PCPs cited. It will inevitably lead to fewer Failure to Make Reasonable Adjustment claims being made out. Nonetheless, the one off decisions or actions cases which previously were pleaded as s.20 claims, will now need further consideration but likely to support s.13 direct discrimination claims.

 

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02.05.2020