Ishola v Transport for London
Mr Ishola was employed by TFL in customer services. He suffered from depression and migraines. He made a complaint about the conduct of another employee in April 2015. Although the employer investigated the complaint, it was not upheld and Mr Ishola was dissatisfied with the investigation and the outcome.
He went on sick leave in May 2015, following which, he did not return to work. He was eventually dismissed in June 2016 on the grounds of medical incapacity. During Mr Ishola’s sickness absence, he raised a number of grievances complaining of discrimination and harassment by the TFL employees tasked with managing the sickness absence.
In the employment tribunal, Mr Ishola brought a number of claims, including one for disability discrimination on the basis that TFL had failed to make reasonable adjustments.
He contended that requiring him to return to work without a proper and fair investigation into his grievances was a ‘provision, criterion or practice’ (“PCP”), which put him at a substantial disadvantage in comparison with persons who are not disabled.
The tribunal found that the alleged PCP was not made out as it was a one-off act in the course of dealings with one individual and not a PCP.
On appeal, the EAT agreed with the tribunal’s conclusion. Mr Ishola appealed further to the Court of Appeal.
The Court of Appeal
Mr Ishola argued that if an employer takes any decision or action with effects or impacts capable of remedy by making a reasonable adjustment, it qualifies as a PCP.
The Court of ApCorut of peal held that, although the concept of a PCP could be interpreted widely and purposively, it did not apply to every act of unfair treatment of a particular employee. When considering the function and purpose of a PCP, the Court of Appeal held that, ‘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 it if occurred again’. A ‘practice’ connoted ‘some form of continuum in the sense that it is the way in which things generally or will be done’.
Although a one-off decision or act could be a ‘practice’ in theory, it was not necessarily one. The tribunal was therefore entitled to conclude that requiring an employee to return to work without a proper and fair investigation of his grievances was not a PCP for the purposes of the Equality Act 2010.