Case law: One-off act by employer which disadvantaged disabled worker was not indirect disability discrimination

An employer making a one-off decision or carrying out an act which disadvantages a disabled employee may not be indirectly discriminating against the employee, because their decision or act may not be a ‘provision, criterion or practice’ - provided it is genuinely one-off – a recent legal ruling confirms.

A disabled employee made various legal claims, including one of indirect discrimination on the grounds that his employer had failed to make reasonable adjustments for his disability. The alleged failure was that it required him to return to work before it had finished a proper and fair investigation into grievances he had made.

For his claim to succeed he had to show that his employer had operated a provision, criterion or practice (PCP) which put disabled employees (including him) at a disadvantage compared with people who were not disabled.

His employer argued that its conduct did not amount to a PCP because it was ‘a one-off act in the course of dealings with one individual’.

The Court of Appeal ruled that not every decision or act of unfair treatment of a worker amounted to a PCP – it depended on whether a similar case in the future would be treated the same way. Particularly, while a one-off act could amount to a ‘practice’, it would not necessarily do so.

It ruled that there was no PCP and therefore no indirect indiscrimination.

Operative date

• Now

Recommendation

• Employers should ensure that any decisions or acts which disadvantage a disabled employee are genuinely one-off and do not amount to a potentially discriminatory ‘provision, criterion or practice’.

Case ref: Ishola v Transport for London [2020] EWCA Civ 112