When dealing with sickness and capability issues, HR professionals need to remain alert to the fact that failure to conduct a fair process, even if in only one respect, may lead to disability discrimination.
One-off decisions are PCP ‘practices’ under the Equality Act 2010
Care must be taken not to rely on recent case dealing the need for reasonable adjustments discrimination under the DDA 1995 if it is the Equality Act 2010 which applies. Stephen Jackson of Jackson Osborne recently obtained a settlement of £558,868.86 for Mrs Jean Thacker against Richmonshire District Council. Had her case arisen under the DDA 1995, the employer could have argued that failure to provide an apology could not amount to a ‘practice’ on the basis that consideration of making any apology was a one off event and, therefore, that the question of making a reasonable adjustment (i.e. giving an apology) did not arise. However, the failures in respect of Mrs Thacker occurred after 1 October 2010 and so fell under the Equality Act 2010 and the Equality and Human Rights Commission’s Equality Act 2010 Code of Practice (2011) which specifically embraces one-off decisions and actions.
What about one off decision under the DDA 1995?
For those who dealing situations arising pre-1 October 2010, in our view recent EAT decisions remain capable of challenge.
Firstly, there is precedent where the EAT has previously held the words ‘provision, criterion or practice’ to be broad enough to encompass a single discretionary management decision (British Airways plc v Starmer  IRLR 862).
Secondly, recent EAT decisions are based upon an observation that “Practice has something of the element of repetition about it”. That observation may not be necessary or helpful. Take the example of an employer that 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 ‘best practice’ does not mean it has not adopted a particular ‘practice’. To the contrary and by definition, it has applied ‘a practice’.
Since the DDA 1995 must be read purposively to protect the disabled employee, why is there any need to interpret ‘practice’ as requiring repetition? This is a restricted interpretation which is also contrary to the Disability Rights Commission’s Code of Practice: Employment and Occupation 2004 (which is the code relevant to the DDA).