Court of Appeal clarifies what acts are covered by disability discrimination claims

Disabled claimants bringing claims under the Equality Act 2010 (‘EA 2010’) against an employer* for reasonable adjustments or indirect disability discrimination must show that the employer applied or would apply a ‘provision, criterion or practice’ (or ‘PCP’) to them.

The EA 2010 does not define what a PCP is. The Statutory Code of Practice from the Equality and Human Rights Commission (‘EHRC’) tells us that the term:

…should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, or qualifications including one-off decisions and actions. (6.10)

‘How widely?’ was the essential question for the Court of Appeal in Ishola v Transport for London [2020] EWCA Civ 112. The Court’s far-reaching judgment clarifies that not all ‘one-off‘ decisions or acts necessarily amount to a PCP that a disabled claimant can rely on.

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In summary, Lady Justice Simler held that:

• The purpose of a PCP in a reasonable adjustments claim is to identify what in the employer’s management of the employee or its operation causes substantial disadvantage to the disabled employee (or the particular disadvantage suffered by some and not others in an indirect discrimination claim);
• PCPs must therefore be capable of being applied to others in order for there to be a comparison of the disadvantage suffered by the disabled employee and others who are not disabled;
• PCPs refer to a state of affairs which indicate how similar cases are generally treated or how a similar case would be treated if it recurred (even if it has not been applied to anyone else);
• Although a one-off decision may amount to a PCP, it won’t necessarily be one (§§ 36 – 38).

It follows that if there is no indication that a one-off decision would be applied to another person, it is unlikely to amount to a PCP. The classic example is an unfair disciplinary procedure. Unless the employer makes a habit of following unfair disciplinary procedures, they are unlikely to amount to a PCP.

On the particular facts in Ishola, TfL had not applied a PCP to the Claimant to attend work prior to addressing one of his grievances. TfL’s decision to proceed with absence managment procedures before addressing one of the Claimant’s final grievances was a one-off decision. It did not reflect how things were generally done or how they would be done in future. There was evidence that other grievances were promptly investigated. For those reasons, the Claimant’s appeal was dismissed.

The key parts of the reasoning of the Court are set out below:

1. The function of the PCP in a reasonable adjustment context is to identify what it is about the employer’s management of the employee or its operation that causes substantial disadvantage to the disabled employee. The PCP serves a similar function in the context of indirect discrimination, where particular disadvantage is suffered by some and not others because of an employer’s PCP. In both cases, the act of discrimination that must be justified is not the disadvantage which a claimant suffers (or adopting Mr Jones’ approach, the effect or impact) but the practice, process, rule (or other PCP) under, by or in consequence of which the disadvantageous act is done. To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply. I accept of course (as Mr Jones submits) that the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply.

1. 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.

1. 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.

*or a provider of services, education or public functions.

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