What is the purpose of defining a PCP in a Discrimination Claim?

The purpose of defining a ‘provision, criterion or practice’ (“PCP”) is to put the
Employment Tribunal in a position to assess whether something an employer does to its employees gives rise to a difference in outcomes depending on the characteristics of its employees; ‘adverse impact’.

2. The predecessor of the PCP was the ‘requirement or condition’ contained in the olderant-discrimination legislation. PCP is the European version of the concept. Both of these concepts were created for the purpose set out above. They existed initially in order to assess adverse impact in indirect discrimination claims.

3. The EU then introduced disability discrimination legislation. The use of the concept of the PCP was, upon the introduction of that legislation, extended into the duty to make reasonable accommodation for disabled persons.

4. In both situations, the PCP creates the framework in which adverse impact is assessed. Indirect discrimination and reasonable adjustments claims are similar but there are important differences between them.

5. In indirect discrimination claims, the cases often refer to ‘adverse disparate impact’ because the adverse impact must be shown to affect one group (to which the Claimant must belong) more than it does another group whereas in a reasonable adjustments claim, the Employment Tribunal does not need to consider whether adverse impact at a group level but simply at the level it affects the Claimant.

6. The phrase ‘adverse disparate impact’ is used in the case law in indirect discrimination and equal pay cases. Using the term ‘Adverse impact’ as a general term covering both ‘adverse disparate impact’ in indirect discrimination cases and the substantial disadvantage a disabled person suffers compared to non-disabled persons is my own usage.

When does a PCP need to be defined?
7. The proper definition of a PCP is the essential first step in two types of claim:
i) a claim of indirect discrimination brought under Section 19 of the Equality Act
2010;
ii) a claim for breach of the duty contained in Section 20(3) of the Equality Act 2010 to make reasonable adjustments in relation to a disabled person.

8. There is a third situation in which a PCP may need to be defined: in order to defeat an employer’s material factor defence in a claim for equal pay. An employee may need to define a provision, criterion or practice in order to demonstrate that the material factor is of itself indirectly discriminatory and hence should fail (see Section 69(1) to (2) of the Equality Act 2010). However, in this situation (but only this situation), there exists an alternative form of indirect discrimination which does not require the definition of a PCP.

9. The European Court of Justice identified this concept of indirect discrimination in Enderby v Frenchay Health Authority [1994] ICR 112. The concept only applies to Section 69 of the Equality Act 2010 which creates the defence of material factor in claims arising out of the breach of the implied equality clause. An employer has a defence to an otherwise valid claim for equal pay if he can demonstrate that the
difference in pay due to a material factor as defined by Section 69 of the Act.

10. In Enderby, the ECJ ruled that if the application of that material factor gave rise to adverse disparate impact, the employer could not rely upon it, even in circumstances where the adverse disparate impact did not arise as a result of measures taken by the employer. Under the Enderby test for indirect discrimination, the mere fact that the circumstances of the protected group are worse than those not belonging to the protected group is sufficient to establish indirect discrimination. So, for example, if an employer has a policy of paying pay at market rates and the market rate for a given profession which is traditionally female dominated is less than that her male comparators, Enderby type adverse disparate impact is made out even though the employer itself has no PCP which tends to favour women applicants to such roles. There is no requirement to show a causal link between what the alleged discriminator has done and the existence of the adverse disparate impact: Section 69(2) of the Equality Act 2010.

11. Such an approach is not applicable to Sections 19 or 20 of the Equality Act. However, Enderby type indirect discrimination highlights the purpose of defining the PCP. The purpose is to assess whether something an employer does to its employees gives rise to a difference in outcomes depending on the characteristics of its employees. The employer must apply the PCP.

What are the consequences of defining the PCP wrongly?
12. The court or tribunal must carefully define the precise nature of the PCP that forms the substance of the complaint. A court of tribunal cannot go on properly to assess the impact of the PCP if it is not correctly defined. It will be unable to assess the true consequences of an ill-defined PCP. It will be unable to identify the precise identity of those to whom it was applied.

13. For those reasons, failure to define the PCP properly, using the wrong PCP or failing to define the PCP at all are errors of law. The leading decision of the EAT is: Environment Agency v Rowan [2008] IRLR 20, EAT which was approved by the Court of Appeal in Newham Sixth Form College v Sanders [2014] EWCA Civ 734. For claims under Section 20 Bethnal Green & Shoreditch Educational Trust v Dippenaar UKEAT/0064/15 (21 October 2015, unreported) adopts the reasoning in that line of authorities.

14. However, failing to identify the PCP is a surprisingly common error, particularly in reasonable adjustment cases. A claim for failure to make reasonable adjustments should always be considered in two parts: firstly, does the duty to make reasonable adjustments arise at all (which involves defining the PCP and examining its disparate effect) and secondly, but only if the duty does arise in the first place, considering what adjustments should be made. It is surprising how often Employment Tribunals skip to the second stage without considering the first stage.

When does a PCP not need to be defined?
15. There are three types of claims for breach of the duty to make reasonable adjustments. Only one of them requires the definition of a PCP. Section 20 of the Equality Act 2010 provides that the duty comprises the following three requirements.
i) The first requirement is a requirement, where a provision, criterion or practice
of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

ii) The second requirement is a requirement, where a physical feature puts a
disabled person at a substantial disadvantage in relation to a relevant matter in
comparison with persons who are not disabled, to take such steps as it is
reasonable to have to take to avoid the disadvantage.

iii) The third requirement is a requirement, where a disabled person would, but for
the provision of an auxiliary aid, be put at a substantial disadvantage in relation to
a relevant matter in comparison with persons who are not disabled, to take such
steps as it is reasonable to have to take to provide the auxiliary aid.

16. There is no need to define a PCP in claim for breach of the duty contained in Section 20(4) and (5) of the Equality Act 2010 to make reasonable adjustments in relation to a disabled person.

17. Section 20(4) puts an employer under the duty of reasonable adjustments, where a physical feature puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled. Section 20(5) puts an employer under the duty to make reasonable adjustments where failure to provide a disabled person with an auxiliary aid puts a disabled person at a substantial disadvantage, to take such steps as it is reasonable to have to take to provide the aid.

18. Section 20(11) provides that “auxiliary aid” includes a reference to an “auxiliary service”. Section 22 of the Equality Act 2010 gives the Secretary of State the power to make regulations defining auxiliary aid if he wishes to do so. However, he has not exercised that power in relation to the employment provisions of the Equality Act 2010. There is therefore no further definition of ‘auxiliary aid’. There is therefore wide scope for arguing that an adjustment an employee wants is an auxiliary aid or auxiliary service. The advantage of pleading a claim under Section 20(4) is that it avoids the need to define a PCP. In my experience, Section 20(4) is an extremely underused provision in spite of its simplifying effect. It should always be considered as the primary cause of action, with a Section 20(3) claim pleaded in the alternative, if it is pleaded at all. 

19. These causes of action are simpler than a PCP-based claim under Section 20(3) in spite of which they are so often forgotten.

20. There are other situations in which a PCP is unnecessary:
i) in Enderby type discrimination (see above);
ii) where the disparate impact of a PCP which is contractual gives rise to a
difference in pay between men and women, in which case the claim is claim for
equal pay (see below);
iii) where the PCP is so inextricably linked with a protected characteristic, in which
case the claim is one of direct discrimination. The PCP in this case fails the
requirement that it be neutral;
iv) where the allegation is that the PCP was in fact applied for the purpose of
discriminating against the Claimant because of his protected characteristic.

Again, the PCP in this case fails the requirement that it be neutral. Such
allegations are allegations of direct discrimination.

SUMMARY
The purpose of the PCP is to enable the Tribunal to assess adverse impact
A PCP must be defined in a claim for indirect discrimination. PCPs must be defined in claims for breach of the duty to make reasonable adjustments brought under Section 20(3) of the Equality Act 2010 but not in claims for breach of the duty to make reasonable adjustments under Sections 20(4) (“physical feature”) and 20(5) (“auxiliary aid”) claims.

A PCP may need to be defined in an Equal Pay claim in order to prove that an
employer’s material factor defence is tainted by discrimination and hence not
a valid defence.

If a PCP is wrongly defined, there will be an error of law.

B. THE STATUTORY TESTS
21. PCPs cannot be considered in isolation without reference to the full legal test of which they form part. In particular, defining the PCP can only be done properly alongside defining the adverse impact to which it is said to give rise. The two are inextricably linked.

22. Claims under Section 20(3) are common; claims under Section 19 are by comparison rare. As long as the legal test is understood and properly applied, they are relatively straightforward. Claims under Section 19 are conceptually more difficult and even where the test is well understood, it can be difficult to apply in practice. The most difficult issue conceptually in claims under Section 19 is how adverse disparate impact is shown.

Section 19: Indirect Discrimination
23. An employer commits the tort of indirect discrimination where:
a. the employer applies the PCP to the Claimant: section 19(1) of the Equality Act
2010; and 
b. the employer applies or would apply the PCP to those who do not share the Claimant’s protected characteristic: section 19(2)(a) of the Equality Act 2010; and
c. the PCP puts, or would put:

i. persons with whom the Claimant shares the characteristic at a particular
disadvantage when compared with persons with whom B does not share it,
ii. the Claimant at that disadvantage.

24. The Respondent has a defence if it can show that applying the PCP to the Claimant is a proportionate means of achieving a legitimate aim.

Section 20(3) of the Equality Act 2010: Reasonable Adjustments
25. An employer is under the duty in Section 20(3) where:
a. the employer applies the PCP to the Claimant; and
b. that PCP puts the Claimant at a substantial disadvantage in comparison with persons who are not disabled.

26. The duty consists of a duty to make take such steps as it is reasonable to have to take to avoid the disadvantage.

27. The Respondent has a defence if it can show:
a. he does not know, and could not reasonably be expected to know that:
i. an employee has a disability; and
ii. is likely to be placed at the substantial disadvantage to which the PCP
puts him.

C. PRACTICAL ISSUES AND THE CASE LAW RELATING TO DEFINING THE PCP
The Claimant must have the protected characteristic
28. The Claimant must prove first of all that he belongs to a particular protected group. Section 19(2)(c) requires the Claimant in a case brought under Section 19 to show that he is put to the disadvantage to which the protected group to which he belongs as a whole is put.

29. That may seem to be statement of the obvious. However, indirect discrimination differs from direct discrimination in this respect where there is no requirement for the Claimant to be a member of the protected group.

30. In direct discrimination claims, a Claimant who does not have a protected characteristic may bring a claim where he has shown solidarity with a member of a protected group: Zarczynska v Levy [1979] ICR 184, EAT; Showboat Entertainment Centre Ltd v Owens [1984] IRLR 7 EAT, because of his association with an actual member of a protected group (see Coleman v Attridge Law and Steve Law: [2008] ICR 1128, ECJ or even perceived membership of a protected group (see English v Thomas Sanderson Blinds Ltd [2009] IRLR 206, CA. In those circumstances, the Claimant need not be a member of a protected group in order to bring a direct discrimination claim.

31. However, it is an essential requirement of indirect discrimination on the plain wording of the statute that the Claimant be a member of a protected group, since liability rests, to a very significant degree, on showing adverse disparate impact between those who belong to that group and those who do not belong to that group.

32. The same goes for claims under Section 20. The EAT has expressly rejected the argument that an employer is under a duty to make reasonable adjustments to
accommodate an employee associated with a disabled person (e.g. someone for whom the employee has care responsibilities): Hainsworth v Ministry of Defence [2014] IRLR 728, CA.

Application of the PCP
33. The only common element on plain wording of the statute is that the employer applies the PCP to the Claimant.

Must the PCP be applied to the Claimant himself?
34. However, even this simple aspect of the test, there is one difference. Under a claim under Section 19, the PCP can be something which is potentially applied, but not applied in practice. The purpose of defining the PCP is to be in a position to assess the adverse impact on the person with the protected characteristic.

35. Under Section 19, it is an express requirement that the PCP be applied either in practice (“applies”), or potentially (“would apply”), to those who do not share the Claimant’s characteristic.

36. There appears to be no express requirement under Section 20. It might be thought that by implication, a PCP under Section 20 must also be one which is applied to both disabled person and non-disabled person alike. However, the statute certainly leaves open the argument that in reasonable adjustment claims, the Claimant himself need be the only person to whom the PCP was applied. The EAT has held that such PCP applied to others which still places the Claimant at a substantial disadvantage can be actionable: Roberts v North West Ambulance Service UKEAT/0085/11, [2012] ICR D14.

37. The Court of Appeal suggested obiter in Coker v the Lord Chancellor [2002] ICR 321, [2002] IRLR 80CA at paras 21 to 24 that where an appointment is made without a selection procedure with the aim of appointing an already identified individual, no PCP is applied to those who are unaware of the procedure but would have applied, had they known about it.

38. However, it is submitted, this ignores the part of Section 19(2)(a) that makes clear that there are two circumstances where a PCP can be challenged: where the PCP was applied or where the alleged discriminator would apply it to the Claimant. If the Claimant had known about the application procedure, the requirement that he be known personally to the Lord Chancellor would have been applied to him. Such circumstances seem to comply with the requirements of the section.

Can a PCP be applied to just one person?
39. There is no need for universal or even wide application of the provision, criterion or practice; it is enough that it is applied to the Claimant: British Airways v Sturmer [2005] IRLR 863, para 17-18 per Burton P. The Claimant in that case was a female pilot who wished to reduce her hours to 50 per cent of full time hours. Her employer refused. The employer argued that this was a one off decision by management and therefore did not amount to a PCP. The EAT rejected that argument. However, an assessment of how the PCP would have affected those to whom it might or could have been applied will be necessary. Consequentially, the argument in that case that a management discretion applied only to one individual was incapable of amounting to a PCP was rejected. It is sufficient if it is applied to the Claimant alone. In such circumstances, the court or tribunal has to draw up a hypothetical pool for comparison.

Statutory Definition
40. The Act does not define ‘provision, criterion or practice’ further. It has been left to tribunals and courts to determine what fits this description. The definition is undoubtedly intended to be very wide. An argument that the measures taken about which the Claimant complains does not amount to a PCP and hence falls outside of the Act is very unlikely to succeed. The first part of the test – which is common to both Section 19 and 20 claims – should be viewed as a very low hurdle.

Wide meaning
41. The words ‘provision, criterion or practice’ must not be given a narrow meaning. The words provision, criterion or practice are not cumulative and it is sufficient for a Claimant to prove it is one or the other: British Airways v Sturmer [2005] IRLR 863, para 17 per Burton P. It is enough if a PCP can be identified.
Neutrality of PCP

42. The PCP must be apparently neutral, for if it is premised on a rule that is of itself discriminatory, the claim is likely to be for direct discrimination, not indirect
discrimination: James v Eastleigh BC [1990] ICR 554, HL.

43. Most of the European legislation relevant to the Equality Act 2010 is contained in European Directives. 

44. The differences between the European definition of indirect discrimination and the definition of Indirect Discrimination in the Equality Act 2010 are that the European definition speaks of an ‘apparently neutral’ PCP.

45. If the PCP is not neutral in its formation, it gives rise to the question of whether the claim is properly brought under Section 19 at all. It may well be a claim for direct discrimination. This is discussed in more detail below.

Circularity
46. The application of the PCP should not result in a circular argument and it should be sustainable in logic: Bailey v Home Office [2005] IRLR 369. This test case concerned equal pay claims on behalf of 2,000 administrative staff in the Prison Service, who compared their work to prison officers, or industrial or non-industrial support staff. The employment tribunal reasoned that there was a PCP to obtain the advantages enjoyed by the comparator group “that one has to be a member of that comparator group”. The Employment Appeal Tribunal and Court of Appeal held that such an approach was unsustainable in law.

The PCP is an objective question of fact
47. The finding of a PCP is one of fact for the tribunal to make on the evidence before it: Jones v University of Manchester [1993] IRLR 218. In a claim under Section 20 of the Equality Act 2010, reasonableness of the employer’s actions is not relevant to the question whether it has imposed a PCP, which is instead an objective question of fact (with reasonableness arising later in the process): Wolfe v North Middlesex University Hospital NHS Trust [2015] ICR 960, EAT.

48. It is for the Claimant to identify the provision, criterion or practice that he wishes to challenge: Allonby v Accrington and Rossendale College [2001] IRLR 364, CA, 

49. In some cases, PCP may be expressly defined by the employer. In other cases, the Employment Tribunal may need to formulate it by analysing the employer’s practice or behaviour. There is no need for PCP to be explicitly stated. It need not be something formal in nature or expressed in writing: Cast v Croydon College [1998] ICR 500 CA, para 27. Evidentially, it will be easier for Claimant to prove the application to him of PCP, where it is a formal policy or procedure. So, for example, an employer who has no policy relating to working flexibly from which female employees who have childcare responsibilities might have sought to take advantage, nonetheless applies a PCP to those employees that can be challenged.

50. There may be a number of different formulations consistent with the underlying facts. If an employee can realistically identify a PCP capable of supporting their case… it is nothing to the point that [their] employer can with equal cogency derive from the facts a different and unobjectionable requirement or condition: Allonby v Accrington and Rossendale College [2001] IRLR 364, CA.

51. Nonetheless, a court or tribunal will have to determine as a first step whether the PCP actually existed and whether it was applied to the Claimant. The failure to identify the PCP, in accordance with the adduced facts could result in the failure of an otherwise strong claim: Francis v British Airways Engineering Overhaul Ltd [1982] IRLR 10, EAT.

52. Even where a PCP is identified that does accurately reflect the factual situation, there may be more than one way to describe that PCP. The way in which the PCP is formulated will affect who falls into the pool for comparison, which will in turn affect whether disparate impact is demonstrated or not. However, an appeal court will reformulate the PCP is the characterisation of it does not match the real substance of the complaint (see Azmi v Kirklees Metropolitan Borough Council [2007] ICR 1154 and Ladele v London Borough of Islington [2009] IRLR 154, EAT).

53. The Court of Appeal’s decision in Griffiths v Secretary of State for Work and
Pensions [2016] IRLR 216 raises the central issue for disability discrimination law of whether absence management policies need to be modified to comply with the duty of reasonable adjustment and is a good example of an appeal court reformulating the PCP so that it logically and accurately reflects the facts to enable the assessment of adverse impact to be properly carried out.

54. The claimant, who had been absent from work for disability-related reasons, was given a warning under the employer’s attendance management procedure. She claimed that it would have been a reasonable adjustment for the trigger point to be delayed. The EAT accepted the employer’s argument that since the same policy applied to everyone, the Claimant could not be said to have been placed at “a substantial disadvantage” when compared with a non-disabled person, as required to trigger the reasonable adjustment duty. The problem with the EAT’s reasoning was that it treated different people the same, as much a potential error as treating the same people differently. The Court of Appeal ruled that the reasonable adjustment duty is engaged when an employer’s absence management procedure adversely affects employees whose disability makes it
more likely that they will be absent from work. Just because the policy applied equally to all employees did not mean that it did not disadvantage those who were disabled. In so finding, Lord Justice Elias holds that the relevant provision, criterion or practice was not the attendance policy as such. It was that the employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions. “Once the relevant PCP is formulated in that way … it is clear that … a disabled employee whose disability increases the likelihood of absence from work on ill health grounds, is disadvantaged in more than a minor or trivial way”, since the risk of their being absent from work on ill health grounds is “obviously greater”.

55. There was thus a duty to make reasonable adjustments, but the adjustment duty is limited to that which is “reasonable”. In this case, it was open to the employment tribunal to conclude that it would not be reasonable to expect the employer to entirely ignore the claimant’s disability-related absence and revoke the warning she was given. As Lord Justice Elias put it: “an employer is entitled to say, after a pattern of illness absence, that he should not be expected to have to accommodate the employee’s absences any longer. There is nothing unreasonable, it seems to me, in the employer being entitled to have regard to the whole of the employee’s absence record when making that decision.”

56. Therefore, what is reasonable and what is not will be a matter for the employment tribunal.

Covert PCPs?
57. Of course, a claimant may claim that PCP is covert. There is nothing in the legislation which prevents a case being brought on that premise although the legislation, with its anti-avoidance origins, was clearly drafted with express policies, criteria and practices and in mind. The PCP does not have to be something the employer consciously does or admits to doing. The employee may pray in aid of the burden of proof provisions in order to prove a covert PCP (see discussion in Essop and others v Home Office (UK Border Agency) [2015] ICR 1063 and Bethnal Green & Shoreditch Educational Trust v Dippenaar UKEAT/0064/15 (21 October 2015, unreported) (applying Project
Management Institute v Latif [2007] IRLR 519, EAT at [45], per Elias P). However, the requirement that a PCP be neutral should be borne in mind. If applying a PCP is neutral, why do it in secret? If the intention of applying the PCP is to discriminate against a certain group, is the claim not really one of direct discrimination?

Can a one-off act be a PCP?
58. While some case law has suggested that these terms require an element of repetition (especially a ‘practice’) (see Nottingham City Transport Ltd v Harvey
UKEAT/0032/12, [2013] EqLR 4 and Carphone Warehouse v Martin UKEAT/0371/12, [2013] EqLR 481) this was later doubted as a general principle (especially in the case of a ‘provision’ or ‘criterion’) in obiter remarks in Gallop v Newport City Council [2014] IRLR 211.

SUMMARY
In PCP based claims, the Claimant must have the protected characteristic
being assessed for adverse impact The employer must apply the PCP to the Claimant In indirect discrimination, the application to the Claimant may be hypothetical as opposed to actual.

The Claimant may be the only person to whom the PCP is applied in indirect
discrimination. 

The definition of PCP is intended to be wide. 

PCP is a low hurdle. 

The PCP must be neutral. 

The PCP should not result in a circular argument. 

The PCP is an objective question of fact to the Tribunal to determine on the
evidence it has before it. 

The PCP may be expressly stated or something more informal. 

The Claimant should however identify the PCP he wishes to challenge and the
Tribunal should determine whether that PCP existed. 

The Tribunal can reformulate the PCP as long as it is derived from the facts
alleged and proven in support of the PCP for which the Claimant contended
The PCP may be something covert (i.e. denied by the employer). 

One-off act can be a PCP as long as it is not said to be a practice.

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