Mr Charles Ishola v Transport for London
| Jurisdiction | England & Wales |
| Judge | Lady Justice Simler,Sir Jack Beatson |
| Judgment Date | 07 February 2020 |
| Neutral Citation | [2020] EWCA Civ 112 |
| Docket Number | Case No: A2/2019/0014 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 February 2020 |
[2020] EWCA Civ 112
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Kerr
UKEATPA/0184/18/RN
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Simler
and
Sir Jack Beatson
Case No: A2/2019/0014
Mr Tristan Jones (instructed by Advocate) for the Appellant
Mr Andrew Allen (instructed by Eversheds Sutherland (International) LLP) for the Respondent
Hearing dates: 21 January 2020
Approved Judgment
Mr Ishola (who is referred to as “the claimant” for ease of reference) was employed by the respondent for almost eight years and was, it is common ground, at all material times a disabled person suffering with depression and migraines. Following a period of sickness absence that started on 12 May 2015, he did not return to work and was dismissed on grounds of medical incapacity by letter dated 24 June 2016.
He brought three wide ranging claims against the respondent. The first two claims were dealt with together and resulted in a liability judgment dated 5 October 2016 (“the first ET judgment”). Most of his complaints were dismissed but the first ET judgment upheld his claims in one minor respect.
The third claim (with which this appeal is concerned), was confined to allegations which post-dated 3 November 2015. It comprised claims of unlawful disability and race discrimination, together with claims of harassment, victimisation, unfair dismissal and unlawful deduction from wages. Save for a limited finding that there was a breach of the duty to make reasonable adjustments (in the respondent's lateness in advising of a reduction to his sick pay and failure to allow a friend or family member to accompany him to sickness review meetings) and a corresponding finding of unlawful indirect discrimination, by a judgment promulgated on 27 November 2017, all claims failed and were dismissed. The Employment Appeal Tribunal (the “EAT”) held that the Employment Tribunal erred in one material respect that is not relevant to this appeal and remitted that issue.
This appeal proceeds on the basis of a single ground on which permission to appeal was granted. It concerns the concept “provision, criterion or practice” in s.20 Equality Act 2010, commonly referred to as a PCP, which is one of the three requirements in the creation of a duty to make reasonable adjustments in respect of a disabled person. The single ground is that too narrow and technical an approach was taken to the reasonable adjustments claim in that the Tribunals below should properly have found that the respondent operated a PCP of requiring the claimant to return to work without concluding a proper and fair investigation into his grievances raised on 12 April 2016 and 30 May 2016, which he says were not properly and fairly investigated prior to his dismissal.
The Employment Tribunal held there was no PCP operated by the respondent because the alleged requirement was “a one-off act in the course of dealings with one individual”. The EAT upheld that conclusion. The claimant appeals contending that an ongoing requirement or expectation that a person should behave in a certain manner (here, return to work despite the outstanding grievances) is a “practice” within the meaning of s.20(3) Equality Act 2010.
The factual background
Given the narrow ambit of this appeal, it is unnecessary to summarise the detailed findings of fact made by the Employment Tribunal. It is sufficient to summarise the background as follows. The claimant's employment began in November 2008. He was employed in a number of roles and latterly, as a customer service administrator. On 15 April 2015 he made a complaint about the conduct of another employee. There was an investigation conducted by Mr Day who found against him, providing him with the outcome of an investigation into that complaint on 12 May 2015. The claimant was not satisfied with the investigation and outcome and went on sick leave on 12 May 2015. He did not return to work after that. During his period of sick absence his pay was reduced to half pay and then to nil pay in accordance with the respondent's policy. The short notice given of the reductions in sick pay was the subject of one of his successful complaints.
Soon after commencing sick leave, the claimant complained about Mr Day's investigation and appealed the outcome of his complaint. These were both dealt with by Ms French. Her decisions were communicated to him on 29 June 2015. The first ET judgment was critical both of Mr Day's and Ms French's approach to and handling of his complaints, but it is common ground that these are background matters only and form no part of this appeal.
The claimant's sickness absence was managed by the respondent through a process of referrals to occupational health doctors and management review meetings with different managers allocated different responsibility at different stages. In December 2015 for example, Ms Bhaimia was appointed as the “People Management Adviser” (or PMA) responsible for dealing with the claimant. The task of managing his absence on sick leave was given to Mr Walters.
Following unsuccessful efforts to arrange a second absence review meeting with the claimant, in March 2016 Mr Walters decided to refer the claimant again to occupational health, seeking clarification on whether he was still unable to return to his substantive role and whether he could take up a position in a less stressful area of the business.
Mr Walters wrote to the claimant by letter dated 17 March 2016 advising him of this decision and setting out the arrangements he had made for him to attend the medical assessment on 1 April 2016. The claimant's response (of the same date) made various complaints about Mr Walters' behaviour and referred to the bullying and harassment policy. Mr Walters responded asking the claimant if the letter should be treated as a formal complaint under the bullying and harassment policy. The claimant provided a detailed response dated 23 March 2016, saying he would attend the occupational health appointment subject to his state of health but, “would not be raising a grievance as he believed it would be a waste of time and energy and the case would be covered up as usual”.
The occupational health appointment did not take place as planned. Mr Walters wrote to him by email dated 7 April 2016 confirming that he had asked for a further, final appointment to be arranged. This appointment did not ultimately take place, because the claimant said he was too unwell to attend. The claimant responded to Mr Walters on 12 April 2016 stating that he felt the red font used by Mr Walters in his email was disrespectful, threatening and set a bad tone. He referred to having been victimised, threatened and harassed since Mr Walters was appointed. Mr Walters responded by letter dated 18 April 2016. He apologised for the use of red font and as the Employment Tribunal found, “replied, as far as he was able, to the various points raised by the claimant”. This is the first of the unresolved complaints relied on by the claimant on this appeal.
On 10 May 2016 Mr Walters wrote inviting the claimant to a further sickness absence review meeting on 1 June at a mutually agreed location. The letter explained the purpose of the meeting was to discuss his long-term sickness and review the options available, including any reasonable adjustments to assist his return to work and redeployment. The claimant was given a final opportunity to consent to the release of an updated occupational health report. The letter indicated that if there was no prospect of the claimant's return to work in his last role and occupational health was unable to advise on redeployment, the outcome of the meeting may include dismissal.
The meeting was rescheduled for 8 June 2016, as communicated to the claimant in an email from Mr Walters dated 26 May 2016, because of posting errors. The claimant complained about that email: that he felt threatened, stressed and depressed and was not well enough to attend the meeting. He asked to be sent the outcome by email and post. Ms Fearon-McCaulsky responded acknowledging that he had asked for the outcome to be sent by email and post, but stating that there were other ways he could engage with the process including sending a representative or written representations.
By letter dated 30 May 2016, the claimant wrote to Ms Fearon-McCaulsky (the second unresolved complaint relied on by the claimant on this appeal). The letter was headed “Bullying, disability related harassment and discrimination arising from disability complaints against Sophia Bhaimia (PMA)”. The letter focussed on complaints about Ms Bhaimia (as the Employment Tribunal found) but included complaints about Ms Fearon-McCaulsky. The respondent treated the letter as a complaint limited to Ms Bhaimia's conduct. The complaint was passed to Ms Oduwole on 9 June 2016 and Ms Bhaimia was removed from the case and another PMA (Ms Ademolu) was appointed in her place. Ms Oduwole did not conclude her investigation or provide an outcome within the 28 day period identified as usual in the respondent's grievance policy. The outcome was dated 22 July 2016. It rejected the claimant's complaints. He did not pursue an appeal.
Meanwhile the meeting of 8 June 2016 took place. The claimant did not attend or send a representative and nor did he make written representations.
Ultimately, as set out in a letter dated 24 June 2016, Mr Walters concluded that the claimant had been unable to perform his role for more than 12 months; had failed actively to engage in the process by attending sickness absence review meetings or occupational health appointments since January 2016; and had refused consent for written reports to be released. Mr...
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