REWARD
PCP, job offer, SOSR
NicolaMullineux, senior employment specialist for Peninsula , reviews the decisions in three cases
Ishola v Transport for London In this case, the Court of Appeal held that a provision criterion or practice (PCP) can be established by one-off acts committed by an organisation, but not always. Under the Equality Act 2010, organisations have a legal duty to make reasonable adjustments to assist disabled employees where a PCP places them at a substantial disadvantage. The claimant in this case, who was considered disabled due to depression, was dismissed on the grounds of capability after taking twelve months of sick leave. This had commenced following the outcome of a grievance he had raised against another employee. Although the employer had investigated his complaints the grievance was not upheld, leading to the claimant being very unsatisfied by the outcome. He went on to raise several additional grievances. During an occupational health assessment Mr Ishola outlined that these ‘workplace issues’ were the cause of his depression, and that he was unlikely to improve and therefore return to work until these issues had been addressed. Following his dismissal, be brought numerous claims to the employment tribunal (ET), including failure to make reasonable adjustments. He asserted that he had been asked to return to work from his sick leave without a proper and fair investigation being conducted into his grievances, which was a PCP that had put him at a substantial disadvantage. The tribunal disagreed. They found that no PCP had been put in place because this alleged requirement, that the claimant return to work despite not being happy
with the ongoing grievance issues, was a one-off act. The employment appeal tribunal (EAT) also dismissed his appeal against this decision. They agreed that the employer’s conduct had amounted to a one-off act with no indication it would happen again in the future. The EAT also commented that the claimant would likely not have returned to work unless all grievance outcomes were ‘to his satisfaction’. The claimant appealed to the Court of Appeal, which dismissed his argument. The Court addressed the issue of what amounts to a PCP, outlining that the act in question must be capable of being applied to other individuals in this position. If a claimant was unable to establish this, it would be ‘artificial and wrong’ to convert a one-off act into the application of a discriminatory PCP, and to do so was not the aim of the law.
on refusing to work Sunday hours was not automatically unfairly dismissed. The Employment Rights Act 1996 (ERA) provides shop and betting workers with the right to object to working on Sunday, in certain circumstances. Although dismissing an employee for asserting their statutory rights in relation to Sunday working is automatically unfair, claimants need to demonstrate that the reason, or principle reason, for their dismissal was that they proposed to opt-out of Sunday working. The claimant accepted a job offer as a pharmacist and returned signed, contractual documents to confirm this. However, a week before his role was due to commence, he contacted the company claiming he had not been previously aware that he would be expected to work on a Sunday and could not do this due to religious reasons. His role was to involve a flexible working pattern of 43 hours per week spread over seven days. On receipt of his concerns, the company made a revised offer to him, saying they would permit him to avoid working on Sundays if he reduced his hours to 37 per week. The claimant rejected this and, in response, his job offer was retracted. The company outlined that they had not been able to agree a ‘suitable alternative’ regarding his hours and felt they was ‘no other option’. The claimant later brought numerous claims to the ET, including automatic unfair dismissal for asserting a statutory right and breach of contract. Although the tribunal upheld his claim for breach of contract, they dismissed his claim of automatic unfair dismissal. The tribunal found that, by signing and
...employer’s conduct had amounted to a one-off act...
This case seems to confirm that in order for a PCP to arise, it needs an element of repetition. That said, one-off acts could still give rise to separate discrimination claims and, therefore, care should always be taken in these situations. Ikejuiba v WM Morrison Supermarkets plc In this case, the EAT ruled that an employee whose job offer was retracted
| Professional in Payroll, Pensions and Reward | May 2020 | Issue 60 42
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