The Court of Appeal considered whether a one-off act could be a “provision, criterion or practice” (PCP) giving rise to a reasonable adjustment claim. The court said that a “practice” does not need to have been applied to anyone else. However it should carry with it an indication that it will or would be done again in future if a similar case arises.
2020, Court of Appeal. Full judgment www.bailii.org/ew/cases/EWCA/Civ/2020/112.html
The claimant was disabled with depression and migraines. He went off sick when his complaint against another employee was not upheld. While on sickness absence he raised two further complaints. He was then dismissed on grounds of medical incapacity.
He said his two further complaints were not properly and fairly investigated prior to his dismissal, and argued this was a failure to make reasonable adjustments. What was the provision, criterion or practice (PCP) which the employer was required to adjust? He argued the employer’s PCP was requiring him to return to work without concluding a proper and fair investigation into his grievances.
The employment tribunal held this was not a PCP but a a one-off act in the course of dealings with one individual. A 2012 Employment Appeal Tribunal decision had said “‘Practice’ has something of the element of repetition about it.” The claimant argued that the 2012 decision was wrong. He said that if an employer takes any decision or action with effects or impacts capable of remedy by making a reasonable adjustment, it qualifies as a PCP. According to the claimant there was no need for any element of repetition.
Held by the Court of Appeal: the employer’s decision in this case was not a PCP. The reasonable adjustment claim failed.
One-off act is not necessarily a “provision, criterion or practice”
The Court of Appeal held that all three words – provision, criterion and practice – carry the connotation of a state of affairs indicating how similar cases are generally treated, or how a similar case would be treated if it occurred again.
That does not mean the “practice” needs to have been applied to anyone else in fact. It 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. Accordingly, although a one-off decision or act can be a “practice”, it is not necessarily one.
Parliament had chosen to use those three words, “provision, criterion or practice”, rather than words such as “act” or “decision”. Also 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. The court accepted that the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply.
In the present case there was no evidence of this being the way in which things were generally done in practice, or to indicate that it was the way in which things would be done in future. Rather the evidence showed that in practice grievances were promptly responded to and investigated.