Disability discrimination – PCP – “practice” does not imply repetition!

In Bethnal Green and Shoreditch Education Trust v Dippenaar [2015] UKEAT 0064_15_2110 (21 October 2015) the President of the Employment Appeal Tribunal and the lawyers before him appear to have made a mistake.  The EAT overturned a finding of indirect discrimination caused by the employer’s “provision criteria or practice” (PCP) on the basis, when considering what is a “practice”, that : “Practices”, as distinct from “provisions” and “criteria” involve repetition of conduct, or at least the anticipation of repetition (for example, if the practice is a new one, just adopted).  If “provision” or “criterion” were relied on, it might be acceptable to find this established even if there had been an isolated incident….and although the composite phrase “provision, criterion or practice” might have been relied on, it was not.”  Unfortunately, the President perhaps had in mind the last cast in which he had expressed a similar view, that “practice” implies an element of repetition (Nottingham City Transport Ltd v Harvey [2012] EAT).  In that case, he was dealing with a claim under the DDA 1995 and, so had reference to the Disability Rights Commission’s Code of Practice: Employment and Occupation 2004.  Anyway, what no one seems to have noticed is that claims brought under the Equality Act 2010, the Tribunal must now have regard to the Equality and Human Rights Commission’s Equality Act 2010 Code of Practice (2011), a statutory code approved by Parliament and brought into effect on 6 April 2011.  The new Code in unequivocal:

At paragraph 6.10, in the reasonable adjustments section, that Code states:

“The phrase ‘provision, criterion or practice’ is not defined by the Act but should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions (see also paragraph 4.5).

At paragraph 4.5, in the indirect discrimination section, that Code states:

“The phrase ‘provision, criterion or practice’ is not defined by the Act but it should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. A provision, criterion or practice may also include decisions to do something in the future – such as a policy or criterion that has not yet been applied – as well as a ‘one-off’ or discretionary decision.”

In any event, the observation that “Practice has something of the element of repetition about it” is not necessarily correct or helpful.  An employer may have to perform a task only once, but in choosing how to perform it may look at practices of others or at ‘best practice’ recommendations.  The fact that the employer performs the task only once in accordance with, say, ‘best practice’ does not mean it has not adopted a particular ‘practice’; to the contrary, it has by definition applied a practice.  The statute must be read purposively to protect the disabled employee; there is no need to read practice as requiring repetition (which in all events is contrary to the Code).