Nottingham City Transport Ltd v Harvey UKEAT/0032/12/JOJ
Subjects: Reasonable Adjustments – Meaning of Provision – criterion or practice
C claimed that R had failed to make reasonable adjustments to its disciplinary process. The ET upheld his claim, finding that R had a practice of not investigating cases properly or considering mitigating circumstances. R appealed.
C worked for R from 2001. He had depression which amounted to a disability. His depression caused him frequently to be absent from work and he had a very poor attendance record. After a period off sick he commenced a phased return. Cleft early on three occasions but handed in timesheets showing that he had worked his full hours. A meeting to review the progress of his return to work was used to discuss his leaving early. C became angry when it was raised and walked out. However, the meeting ended amicably. The next day R started disciplinary proceedings as a result of the inaccuracy of C's timesheets. C was eventually dismissed as a result of those proceedings. The ET held that this was unfair because R had not held a reasonable investigation into why the C had behaved as he did and did not consider mitigating circumstances when disciplining a disabled employee. The ET also held that R had unreasonably failed to make adjustments in the light of C's disability.
The Appeal was allowed. The ET had wrongly identified the PCP as the employer's disciplinary procedures and held that these could reasonably have been adjusted by investigating reasonably and considering personal mitigation arising out of disability, and by not dismissing C. It was conceded in the appeal that there was no evidence before the ET that it was the employer's practice was to ignore mitigation or to fail to carry out a reasonable investigation. The ET had therefore wrongly identified the “practice” and had not addressed the relevant questions in Environment Agency v Rowan  ICR 218.
Langstaff J makes some interesting comments about the nature of PCPs. He stated that a one-off application of the Respondent's disciplinary process could not, in the circumstances of this case, reasonably be regarded as a practice; there would have to be evidence of some more general repetition.
It's like waiting for buses. You don't see a decision on what qualifies as a PCP for years and suddenly they all come along at once! It has been clear for some time that there is a need to identify the PCP but gradually the question of what can qualify as a PCP is being fleshed out. In this case Langstaff J's apparent requirement for the PCP to be more than a one-off is interesting. Carphone Warehouse v Martin [2013/1/p.3) is a similar case. Will this mark the beginning of a flurry of case importing an additional element of mens rea or deliberation into the imposition of PCP?