Can a one-off act qualify as a provision, criterion or practice for discrimination claims? Nadjia Zychowicz examines a recent Court of Appeal ruling.
For a one-off act to qualify as a 'Provision, Criterion or Practice' in a discrimination claim, there must be some indication of consistency in how similar cases are generally treated or how they would be treated in the future.
What Is a Provision, Criterion or Practice (PCP)?
PCPs are an essential element for indirect discrimination claims (and in some cases to establish a claim for failure to make reasonable adjustments) under the Equality Act 2010. In order to successfully bring these types of claim in the context of a disability, a claimant must establish that there was a PCP that put them at a particular or substantial disadvantage when compared to people who are not disabled.
PCPs will generally be construed broadly, considering the statute's purpose of eliminating discrimination against those who suffer disadvantage from, for example, a disability. PCPs include formal and informal practices, policies and arrangements and in certain cases may include one-off decisions.
One-off decision not a PCP... in this case…
In Ishola v Transport for London  EWCA Civ 112, the claimant raised grievances whilst he was on sick leave. His employer (TFL) dismissed him on medical capacity grounds without resolving the grievances. The claimant brought claims for disability discrimination - failure to make reasonable adjustments.
The Court of Appeal held that TFL's failure to investigate the grievances was not a PCP. On these facts there was nothing to indicate the decision would be applied again in the future, or that it was the way that things were generally done at TFL. The evidence in this case showed that the particular timing and circumstances of the grievance in question explained why the grievances were not investigated before the dismissal. Therefore, it was a one-off decision and the PCP was not made out.
This case has provided useful guidance on the meaning of PCPs and has demonstrated that whilst unfair treatment, such as a one-off decision or act can be a PCP, it is not automatically one. There must be a state of affairs indicating how similar cases are generally treated or how they will be treated in the future. As a one-off act can be a PCP and all cases will turn on their specific facts, employers should ensure that all grievances are investigated.
Tips for handling grievances
- Always deal with complaints that arise promptly, using available internal processes and following your policies and procedures (remember that some complaints may include matters that amount to whistleblowing disclosures that will create legal protections for those making them).
- Be fair and objective. The process should be carried out with the aim of finding out whether there is an issue that needs to be addressed, not trying to prove (or deny) guilt.
- Investigating officers must be impartial and have the right skillset.
- The investigation should be proportionate to the severity of the issues.