Ishola v. Transport for London: Clarifying the Scope of "Provision, Criterion or Practice" under the Equality Act 2010

Introduction

The case of Ishola v. Transport for London ([2020] EWCA Civ 112) presents a significant examination of the interpretation of "provision, criterion or practice" (PCP) within the context of the Equality Act 2010. The appellant, Mr. Ishola, a disabled employee suffering from depression and migraines, was dismissed by Transport for London (TfL) on grounds of medical incapacity following an extended period of sickness absence. Mr. Ishola contended that TfL's actions amounted to unlawful disability and race discrimination, asserting that the employer failed to make reasonable adjustments as mandated by the Equality Act. This commentary delves into the intricacies of the case, the court's reasoning, the precedents cited, and the broader legal implications arising from this judgment.

Summary of the Judgment

The Court of Appeal upheld the decision of the Employment Appeal Tribunal (EAT) which, in turn, affirmed the Employment Tribunal's ruling that TfL did not operate a PCP in its handling of Mr. Ishola's grievances regarding his dismissal. While the tribunal found TfL breached the duty to make reasonable adjustments in a limited capacity—specifically regarding the reduction of sick pay and the failure to allow accompaniment during sickness review meetings—most of Mr. Ishola's claims were dismissed. The central issue on appeal was whether TfL's requirement for Mr. Ishola to return to work without adequately investigating his grievances constituted a PCP under Section 20 of the Equality Act 2010. The Court of Appeal confirmed that a single, isolated instance of an employer's requirement does not necessarily establish a PCP, thereby rejecting Mr. Ishola's broader claims of indirect discrimination.

Analysis

Precedents Cited

The judgment extensively referenced previous cases to elucidate the interpretation of PCP within the Equality Act framework. Notably:

British Airways Plc v Starmer [2005] IRLR 862: This case established that even discretionary, management decisions can constitute PCPs if they can be shown to be requirements or conditions that disadvantage a protected class.
Nottingham City Transport Ltd v Harvey: This case emphasized that for an action to constitute a PCP, there must be an element of repetition or general application, affecting multiple individuals rather than being a one-off instance.

In Starmer, the EAT held that a policy requiring pilots to work either full-time or 75% part-time was a PCP disadvantaging women, even though the decision was discretionary and not applied broadly. Conversely, in Nottingham City Transport Ltd v Harvey, the EAT found that isolated instances of unfair treatment in disciplinary processes did not amount to a PCP due to lack of repetition or general applicability.

Legal Reasoning

The crux of the court's reasoning centered on interpreting the breadth of "provision, criterion or practice." The court corroborated the Statutory Code of Practice's guidance that PCPs should be construed broadly but maintained that not every single act or decision qualifies as a PCP. Specifically, the court emphasized that:

A PCP should reflect a state of affairs indicating how similar cases are generally handled.
There must be an element of repetition or applicability to a group, not merely a one-off decision affecting a single individual.
The presence of a hypothetical comparator is essential to establish disadvantage, necessitating that the PCP could apply to others in similar circumstances.

Applying this framework, the court found that TfL's actions in Mr. Ishola's case were isolated and did not demonstrate an established practice of requiring disabled employees to return to work without fair grievance investigations. The dismissal was primarily based on the medical incapacity and prolonged absence, not directly on disability, thereby not meeting the threshold for a PCP under the Equality Act.

Impact

This judgment reinforces a nuanced understanding of PCPs under the Equality Act 2010, particularly in the context of reasonable adjustments and indirect discrimination. By clarifying that isolated employer actions do not inherently constitute PCPs, the court delineates a boundary that requires more than just a single adverse action for a PCP to be established. This has significant implications for future cases, signaling that claimants must demonstrate a pattern or general practice affecting a protected class to successfully argue indirect discrimination or a failure to make reasonable adjustments.

Employers are thereby advised to ensure that their policies and practices are consistently applied and that any requirements placed upon disabled employees are part of a broader, non-discriminatory framework. This judgment underscores the importance of documenting and demonstrating how policies are applied across the board to avoid inadvertent claims of indirect discrimination.

Complex Concepts Simplified

Provision, Criterion or Practice (PCP): These are elements within an employer's policies or practices that could potentially disadvantage individuals with protected characteristics, such as disability or race. A PCP can be a formal policy or an informal practice, and its identification is crucial in assessing claims of indirect discrimination or failure to make reasonable adjustments.

Reasonable Adjustments: These are modifications or accommodations designed to prevent disabled individuals from being at a substantial disadvantage compared to non-disabled persons. Employers are legally obligated to implement reasonable adjustments unless doing so would impose an unjustifiable burden on the operation of the business.

Indirect Discrimination: This occurs when a seemingly neutral policy or practice disproportionately adversely affects individuals with a particular protected characteristic, and it cannot be justified as a proportionate means of achieving a legitimate aim.

Hypothetical Comparator: In discrimination cases, this is an individual who does not share the claimant's protected characteristic but is similarly situated otherwise. The comparator is used to assess whether the claimant has been treated less favorably due to their protected characteristic.

Conclusion

The judgment in Ishola v. Transport for London serves as a pivotal clarification in the interpretation of PCPs under the Equality Act 2010. By distinguishing between isolated employer actions and established practices, the court provides a clearer framework for assessing claims of indirect discrimination and failure to make reasonable adjustments. This ensures that protections under the Equality Act are applied judiciously, preventing overreach while safeguarding against genuine discriminatory practices. Employers must remain vigilant in ensuring that their policies are equitable, consistently applied, and free from any element that could unduly disadvantage individuals based on protected characteristics. Conversely, employees and their advocates are reminded of the necessity to demonstrate a broader pattern of disadvantage to substantiate claims under the Equality Act.

Overall, this case underscores the delicate balance the courts maintain between preventing discrimination and acknowledging the practicalities of workplace management, thereby contributing significantly to the jurisprudence surrounding employment discrimination law in the UK.