In disability discrimination claims, employers have to make “reasonable adjustments” if the disabled person has been put at a substantial disadvantage by a “provision, criterion or practice”. In Ishola v Transport for London, the Employment Appeal Tribunal (EAT) held that making erratic payments of sick pay could potentially constitute a failure to make reasonable adjustments.
Mr Ishola, who had worked for Transport for London in a number of different roles since 2008, was recognised as suffering from a disability (depression and migraines) under the Equality Act 2010.
In April 2015 he made a complaint about another employee which was investigated but rejected. After going on sick leave in May 2015, he lodged a grievance about the way the investigation had been handled. He was assessed twice by the employer’s occupational health service in August 2015 and January 2016 as unfit to return to work because of the unresolved workplace issues.
At the beginning of November 2015, he was told two days in advance that his sick pay would be reduced by half and then, with six days’ notice, that it would reduce to zero in May 2016. However, as a result of the payroll system malfunctioning, Mr Ishola received overpayments which he then had to repay. He was dismissed in June that year.
Mr Ishola brought a number of different claims including disability discrimination. In particular he argued that TfL had imposed a provision, criterion or practice (PCP) requiring him to return to work without having undertaken a proper and fair investigation of his grievances; and that the “erratic payment” of contractual sick pay constituted a failure to make reasonable adjustments.
Section 15 of the Equality Act states that it is unlawful for an employer to treat a worker unfavourably because of “something arising in consequence of their disability” and they cannot show that the treatment was “a proportionate means of achieving a legitimate aim”.
Section 20 states that employers have a duty to make “reasonable adjustments” if the disabled person has been put at a substantial disadvantage by a “provision, criterion or practice” imposed by the employer compared to someone who is not disabled.
The tribunal held that TfL had not imposed a PCP requiring Mr Ishola to return to work before investigating his grievances (and therefore before dismissing him) as this did not constitute a PCP. Instead it “was a one-off act in the course of dealings with one individual”, ie Mr Ishola.
In relation to the other allegation about a failure to make reasonable adjustments, the tribunal held that there was no “group disadvantage” as the overpayments which had to be repaid would have had an adverse effect on all employees who were on sick pay, whether they were disabled or not.
The EAT agreed with Mr Ishola that the tribunal had made the wrong comparison with regard to the payroll malfunction. Rather than comparing him with all employees on sick pay, it should have made the comparison with employees on sick pay suffering from mental health issues. It therefore remitted this aspect of the claim to the same tribunal to reconsider it.
It also held that although the tribunal had not clearly set out the “legitimate aim” which was to “maintain a fit workforce to run the operation properly” and had focused too much on the means of achieving it, the error had not affected the end result. This was because dismissal was a proportionate means of achieving the legitimate aim of maintaining a fit and able workforce to carry out TfL’s operations.