Practical Law

There is often a tendency to let the issue of PCPs drift on, with the parties engaged in some sort of legal omerta. Claimants hope never to be called on to tackle this knotty legal problem. Respondents keep quiet in the hope of deploying the undefined PCP as a secret weapon during submissions. Neither approach assists the tribunal in deciding the case.

PCPs should be defined at the very earliest stage of the litigation and, ideally, in the ET1 itself. For claimants, a properly pleaded PCP in the ET1 signals to the respondent and the tribunal that their claim is well-thought-out. It demonstrates a level of thoroughness that is still relatively uncommon. For respondents, putting claimants to the sword on their PCPs can lead to an early victory. There are countless occasions where I have seen claimants or their representatives struggle to give any convincing response when required by the tribunal to define the PCP(s) relied upon for the purpose of their indirect discrimination or reasonable adjustments claim.

I will not attempt to give an exhaustive analysis of what a PCP is and is not, but I will comment on what I see as some of the common problems in their definition.

Claimants usually want to complain about the way they have been treated and are focused on the end result rather than the state of affairs which may have given rise to the treatment. One therefore comes across such ill-conceived PCPs as “the practice of dismissing employees on long-term sick leave” or “the practice of not allowing employees to take a five-minute break from their workstation”.

PCPs and the treatment they produce are rarely one and the same; a PCP is normally a more abstract concept one or two steps removed from the treatment itself.

The management of long-term sickness absence is a good example of this. Take the previous “practice of dismissing employees on long-term sick leave”. Even if a claimant could show that such a practice existed (which seems doubtful), a moment’s thought shows that disabled and non-disabled employees would be equally disadvantaged by it.

A PCP one step removed from dismissal might be the application of the employer’s absence management procedures. However, this approach, although more arguable, is still fraught with difficulty. If the employer’s absence management procedures already make an accommodation for disability-related absence, it may be that disabled employees are put at less of a disadvantage by their application. In this regard, see the decisions of the EAT in Royal Bank of Scotland v Ashton [2011] ICR 632 and Griffiths v Secretary of State for Work and Pensions UKEAT/0372/13.

A PCP two steps removed from dismissal might be the employer’s requirement for consistent attendance at work. This form of PCP in the context of disability-related absence management recently gained approval by the EAT in Carranza v General Dynamics Information Technology [2015] IRLR 43 and was described as “fundamentally the feature which had caused [the employee] disadvantage”. The EAT also held that: “The PCP should identify the feature which actually causes the disadvantage and exclude that which is aimed at alleviating the disadvantage.”

Another common mistake is to consider PCPs as one single, homogenous concept that can be boiled down to the employer’s requirements. Provisions, criteria and practices are different concepts with different characteristics.

For example, on current authority, a one-off management decision applied to a single employee may amount to a provision and hence a PCP: see British Airways v Starmer [2005] IRLR 862 concerning a one-off decision to require a female employee to work 75% of her full-time hours. However, that same decision probably would not amount to a practice. In Nottingham City Transport v Harvey UKEAT/0032/12 it was held that: “Practice has something of the element of repetition about it”. If a proposed PCP has not been, or would not be, repeated it would appear that it cannot amount to a practice.

In summary:

• Identify (for claimants) or challenge (for respondents) the formulation of PCPs at the earliest possible stage of the claim.
• Consider whether the PCP is best described as a provision, criterion or practice or a combination thereof.
• Do not fall into the trap of confusing PCPs with the treatment complained of.
• Consider how the application of the PCP gives rise to a disadvantage with reference to comparator groups.
• If the PCP already includes accommodations for disabled persons or others holding protected characteristics, the PCP may need to be reformulated so as to demonstrate disadvantage.