Turning A Blind Eye – One-Off Act Not A PCP

An employer is under a duty to make reasonable adjustments for a disabled employee if it applies a provision,...
UK Employment and HR
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An employer is under a duty to make reasonable adjustments for a disabled employee if it applies a provision, criterion or practice (PCP) that places them at a substantial disadvantage. Although it is clear that courts and tribunals take a wide approach to what amounts to a PCP, the Court of Appeal decision in Ishola v Transport for London makes it clear that there are limits to the concept.

Mr Ishola raised a grievance about the conduct of another employee. He subsequently went off sick and never returned to work. During his sickness absence he raised complaints about two other members of staff who were responsible for managing his absence. These were not resolved before he was dismissed on grounds of medical incapacity. He brought employment tribunal claims arguing, amongst other things, that the employer had failed to make reasonable adjustments. It had applied a PCP of requiring him to return to work before his grievances had been properly and fairly investigated and this placed him at a disadvantage. Both the employment tribunal and EAT dismissed this aspect of his claim, finding that the failure to resolve the complaints before dismissal was a one-off act that only applied to the claimant and as such was not a PCP.

The Court of Appeal agreed. Although a wide and purposive approach has to be taken to the concept of a PCP, it does not apply to every act of unfair treatment of a particular employee. There must be some sense that a PCP informs how similar cases are generally treated or would be treated. As such, a one-off act may amount to a PCP, if other cases would be treated in the same way, but will not necessarily do so. In this case there was no evidence of an expectation or assumption that Mr Ishola would return to work before his grievances had been investigated, nor was there evidence that this was the way in which things were generally done in practice or would be done in the future. This was a one-off decision in the context of dealing with Mr Ishola's case and did not amount to a PCP.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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