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.
In Ishola v Transport for London, 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.