The claimant was employed by the respondent for a period of eight years.  It was found that he was disabled as he suffered from migraines and depression.  The claimant made a complaint about another employee’s conduct. Following an investigation, his complaint was not upheld and he made further complaints based upon this.  The claimant went on sick leave for over a year until being dismissed by the respondent on the grounds of ‘medical incapacity’.

The claimant brought a range of claims against the respondent relating to the grievances prior to the dismissal, the dismissal itself as well as disability and race discrimination.  There was a limited finding from the ET and EAT of a breach of making a reasonable adjustment yet the claimant still appealed based upon the interpretation given to ‘provision, criterion or practice’ within Section 20 of the Equality Act 2010 (Section 4A of the Disability Discrimination Act 1995 in Northern Ireland).  Where a provision, criterion or practice is implemented that puts a disabled person at a disadvantage then it puts a positive obligation on the employer to make reasonable adjustments.

The claimant argued that the idea that he should return to work despite the fact that there were outstanding grievances should fall under the meaning of ‘practice’ within the legislation.  The EAT had held that it did not constitute a practice on the basis that it was a single act in the course of dealings with one employee.   The Court of Appeal noted that the meaning of practice should be construed widely to include one off decisions.  However, there was a distinction between the fact that ‘practice’ was chosen by Parliament rather than using the words ‘act’ or ‘decision’.  Furthermore, the Court of Appeal stated that for it to constitute a practice it would have to be able of being applied to others and this could be hypothetical. Accordingly, the meaning of the word ‘practice’ can cover a one-off decision but it must be such that there could be application of such an act to others in a similar situation.   Therefore, the contextual background would have to be considered but in this case the failure to deal with grievances prior to a return to work was one-off and did not constitute a ‘practice’.   The appeal was dismissed.

Practical Lessons

This decision of the English Court of Appeal gives added definition and clarity to the meaning of ‘provision, criterion or practice’ which is at the heart of the law on reasonable adjustments both in England and Wales through the Equality Act 2010 and in Northern Ireland through the Disability Discrimination Act 1995.  The Court acknowledges a wide interpretation that is to be given to the word but it is not untrammelled.   For this reason, a one-off act whilst capable of being a practice must be examined with reference to its context.  If it could be applied to others, then it may constitute a practice but if it is entirely one-off then it will not satisfy that requirement.
https://www.bailii.org/ew/cases/EWCA/Civ/2020/112.html