The Court of Appeal has considered whether a one-off act can amount to a “provision criterion or practice” (“PCP”) under the Equality Act 2010, and therefore trigger the duty to make reasonable adjustments in Ishola v transport for London.

Mr Ishola was employed by Transport for London (“TFL”). He went off sick from work in May 2015 and never returned and it was accepted that he was disabled during that time. During his absence, he raised grievances against the TFL employees who were managing his sickness absence. He was dismissed for incapacity in June 2016, before his grievance had concluded. Mr Ishola brought Employment Tribunal claims, including that TFL had subjected him to disability discrimination by failing to make reasonable adjustments. In doing so Mr Ishola said that requiring him to return to work before his grievance had been properly investigated amounted to a PCP and that this put him at a disadvantage by comparison to non-disabled employees.

Mr Ishola lost this point in the Tribunal, and appealed to the Employment Appeal Tribunal and then to the Court of Appeal. The question before the Court of Appeal was whether, as Mr Ishola contended, any one-ff decision or action which could be remedied by a reasonable adjustment amounts to a PCP. If the court agreed with him, all one-off acts would qualify as PCPs. However, the Court of Appeal rejected Mr Ishola’s argument. The words “provision”, “criterion” and “practice” all suggest a way that things are generally done and would apply to others in the future.

Had there been evidence that this was how TFL usually handled grievances, or had Mr Ishola been able demonstrate that although this was a one-off act, it was likely to be repeated and applied to others, then Mr Ishola’s original complaint may have been upheld. However in this case, the evidence showed that grievances were usually dealt with quickly, so there was no suggestion of a repeated practice.

Comment: This is a sensible decision, however employers should still be mindful that whilst a one-off act is unlikely to result in a successful reasonable adjustments claim in most cases, the same one-off act may still amount to direct or indirect disability discrimination.

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