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Transport for London successfully defends discrimination claim

Posted: 10th March 2020   In: Business Employment

Transport for London (TFL) has successfully defended a disability discrimination claim that hinged on the interpretation of employment law.

The case involved Mr Charles Ishola, who had been employed by TFL for almost eight years. He was disabled, suffering from depression and migraines.

The discrimination issue arose after he complained about a fellow-employee's conduct.

An investigation was carried out which found against him. He was not satisfied with the investigation and made further complaints relating to harassment, victimisation and discrimination. He was on sick leave for over a year until his dismissal on grounds of medical incapacity.

He brought wide-ranging claims against TFL, complaining that his grievances had not been addressed prior to his dismissal. Apart from one limited finding of a breach of duty to make reasonable adjustments and a corresponding finding of unlawful indirect discrimination, the claims were dismissed by the Employment Tribunal.

Ishola appealed on a point of law relating to the concept of a "provision, criterion or practice" (PCP) in the Equality Act 2010 s.20 that could amount to an employer failing to make reasonable adjustments for a disabled employee.

He contended that the requirement by TFL that he should return to work despite outstanding grievances, was a "practice" within the meaning of s.20(3) and the employer was therefore discriminating against him.

The Employment Appeal Tribunal held that there was no PCP operated by TFL because the alleged requirement to return to work was a "one-off act in the course of dealings with one individual".

The Court of Appeal has upheld that decision. It held that the tribunal was entitled to conclude that TFL's failure to investigate a grievance before Ishola's dismissal was not a ‘practice’ of requiring him to return to work without a proper investigation into that grievance.

Indeed, the evidence showed that, in general, grievances were promptly responded to and investigated by TFL. The timing and circumstances of the grievance in question explained why it was not investigated before the dismissal and made it a one-off decision rather than an ongoing practice. 

Please contact David Rushmere if you would like more information about the issues raised in this article or any aspect of employment law.

Transport for London successfully defends discrimination claim
 [2020] EWCA Civ 112
CA (Civ Div) (Simler LJ, Sir Jack Beatson) 07/02/2020
Posted by: David Rushmere
Luton Office