The phrase ‘Provision Criterion or Practice’ (PCP) relates to indirect discrimination. For employers, it is vital to understand what this term means to help avoid falling foul of the law.
In this guide, we explain what Provision Criterion or Practice means, what the law says about PCP and we share best practice for employers to reduce the risk of unlawfully discriminating against workers.
What is ‘Provision Criterion or Practice’?
A ‘Provision Criterion or Practice’ (PCP) is a legal phrase typically used in relation to workplace discrimination law in the UK. Also sometimes referred to as PCP employment law, this terminology derives directly from the provisions of the Equality Act 2010 when it comes to the statutory protections afforded to job applicants and workers against unlawful discrimination.
Under the 2010 Act, there are two main types of discrimination: direct and indirect. Direct discrimination is where a job applicant or worker is treated less favourably than other applicants and workers because either they possess a protected characteristic, it is thought that they possess a protected characteristic (perceptive discrimination) or they are connected to someone who possesses a protected characteristic (associative discrimination).
In contrast, indirect discrimination is not always as obvious and is often unintentional. This is where a ‘Provision Criterion or Practice’ applies in the same way to everyone, either before or during employment, irrespective of any protected characteristic. However, the net effect is to disadvantage a specific person or group of people who share a particular characteristic.
There are nine protected characteristics under the Act: age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. While there is no express prohibition against indirect discrimination in relation to pregnancy and maternity, a person could instead rely on the protected characteristic of sex.
What does the law say?
Under section 19(1) of the 2010 Act, an employer could be found to be unlawfully discriminating against a job applicant or worker if the employer applies to that person a ‘Provision Criterion or Practice’ which is discriminatory in relation to a relevant protected characteristic that they possess.
For the purposes of subsection (1), a PCP will be discriminatory in relation to a relevant protected characteristic if all of the following subsection (2) conditions are met:
- the employer applies, or would apply, the ‘Provision Criterion or Practice’ to others with whom the job applicant or worker does not share the characteristic
- the ‘Provision Criterion or Practice’ puts, or would put, others with whom the job applicant or worker shares the characteristic at a particular disadvantage when compared with anyone with whom they do not share it
- the ‘Provision Criterion or Practice’ puts, or would put, the job applicant or worker at that disadvantage, and
- the employer is not able to show that the ‘Provision Criterion or Practice’ is a proportionate means of achieving a legitimate aim.
This effectively means that to be indirectly discriminatory, any PCP applied by the employer must be applied to everyone equally. It must also put a particular group who share a protected characteristic at a disadvantage and, as a result of the fact that a particular individual possesses that characteristic, they are disadvantaged because of this. The s.19 provisions also mean that even if any discriminatory effect is unintentional, this will still be unlawful, unless the employer can show that it is a proportionate means of achieving a legitimate aim.
Examples of ‘Provision Criterion or Practice’
While there is no single, statutory definition of ‘Provision Criterion or Practice’, guidance from case law and the Equality and Human Rights Commission (EHRC) together suggest a liberal interpretation. This means that, when seeking to prove that they have been unlawfully discriminated against, a job applicant or worker would simply need to show that something in the workplace — whether a formal or informal rule, requirement, policy, procedure or arrangement, including one-off decisions or actions — puts them at a disadvantage by reason of a protected characteristic when compared with those who do not share that characteristic.
A ‘Provision Criterion or Practice’ can be set out in contracts of employment, staff handbooks, on the staff intranet site or even in emails, letters, memos or notices. Given the wide interpretation applied by the EHRC, and the Employment Tribunal and Courts, PCPs can also be contained in any unwritten rule or regulation applied by an employer. For example, an unwritten custom and practice adopted by an employer to give Christmas vouchers to anyone with a 100% attendance record can be treated as a ‘Provision Criterion or Practice’. This is also an arrangement which potentially discriminates on the grounds of both sex and disability in the context of any worker who has taken maternity or disability-related sick leave.
Importantly, even where a certain rule or requirement is not strict, this can still amount to a ‘Provision Criterion or Practice’. In United First Partners Research v Carreras [2018], the Court of Appeal upheld the decision of the EAT that a non-obligatory requirement for an employee to work longer hours amounted to a PCP for the purposes of disability discrimination under section 20 of the 2010 Act. As with the statutory provisions relating to indirect discrimination, section 20 imposes a duty on employers to make reasonable adjustments where a ‘Provision Criterion or Practice’ puts a disabled person at a substantial disadvantage when compared with non-disabled people. On the facts of Carreras, there had been a clear expectation on the part of the employer that the Claimant, who suffered from chronic disability-related fatigue, would regularly work late, causing Mr Carreras to resign and claim constructive dismissal.
Other common examples of a ‘Provision Criterion or Practice’ capable of indirectly discriminating against either a job applicant or worker can include:
- an advert stating that applicants must have a minimum of 5 years’ retail experience: this could indirectly discriminate by reason of age, where the experience requirement excludes young people who may still have the qualifications and skills needed to do the job;
- a requirement that working hours are changed from part-time to full-time: this could indirectly discriminate against female staff where, statistically speaking, more women than men need to work part-time because of childcare or caring commitments;
- a dress code policy excluding workers from wearing any items of headwear: this could indirectly discriminate against anyone wearing specific items of clothing as part of their faith, such as Sikh men wearing turbans or Muslim women wearing hijabs.
What does PCP mean in practice?
The first hurdle for any claimant when alleging indirect discrimination is to show that the employer had applied a ‘Provision Criterion or Practice’ that put them, as a person possessing a particular characteristic, at a disadvantage in comparison with other job applicants or workers who do not possess that characteristic. However, even where the Claimant can show that a PCP put them at a disadvantage by reason of a protected characteristic, if the employer can show it is a proportionate means of achieving a legitimate aim, the claim will be defeated.
When raising an objective justification defence, consideration must be given by employers to the decision in Akerman-Livingstone v Aster Communities Ltd [2015]. In this case, the Supreme Court considered the approach to be adopted by the Courts when a Defendant raises a disability discrimination defence, in this case in the context of a summary claim for possession, although the same principles extend to employment law cases. In accordance with the Court’s guidance, in deciding if a ‘Provision Criterion or Practice’ is a proportionate means of achieving a legitimate aim, the following four-stage approach should be adopted:
- Is the purpose behind the ‘Provision Criterion or Practice’ sufficiently important to justify the disadvantage suffered?Is there any rational connection between this purpose and the disadvantage suffered?
- Are the means no more than is necessary to achieve that purpose (where the Defendant must not only show that there is a legitimate aim, but that the ‘Provision Criterion or Practice’ is a proportionate means of achieving it)?
- Do the ends justify the means (where the Defendant must strike a fair balance between the need to accomplish the overall aim and the disadvantage suffered)?
In the context of the workplace, common examples of what can be classed as a legitimate aim include the operational and economic requirements of the business, the need to run and provide an efficient service, and health and safety reasons. However, in all cases, the legitimate aim must outweigh the discriminatory effects. The employer must also consider whether there are any less discriminatory measures that can be used. If reasonable alternative steps could have been taken, the disadvantage caused to an individual is unlikely to be justified.
In practice, the Tribunal will often adopt a broad brush approach, undertaking a balancing exercise between the detriment caused as against the reasons for this, and any alternative steps that could have been taken to avoid that detriment. For example, banning loose jewellery in a workplace with heavy machinery can indirectly discriminate against anyone wearing a Crucifix necklace or a Kara bracelet to show their faith, but this can be objectively justified for health and safety reasons. There are also no other sensible means of achieving this aim. In contrast, a ban on beards that would impact Muslim and Sikh workers may not be justified where health and safety obligations can be easily fulfilled by providing beard masks.
Best practice advice for employers
When it comes to indirect discrimination, employers must take proactive steps to help eradicate any discriminatory effects of their workplace policies, rules and practices. This means that all existing and new PCPs should be carefully scrutinised, even if an arrangement is only informal, so as to ensure that these do not unintentionally discriminate against certain groups of people. This is because even where any discrimination is not deliberate, employers may still be exposed to a claim for unlawful discrimination if a ‘Provision Criterion or Practice’ causes, or is likely to cause, a disadvantage to anyone with a protected characteristic.
In cases where a workplace PCP has the potential to be discriminatory, by working through the following questions, this can help employers to decide on the best approach:
- What is the legitimate aim being sought by the employer?
- What alternative options have been considered?
- Why is the chosen PCP reasonably necessary to achieve the legitimate aim?
- How many applicants or workers are likely to be affected by this PCP?
- To what extent will these people or groups of people be subject to a disadvantage?
- Are there any less discriminatory ways to achieve the same aim?
Employers should also keep detailed records of these reviews, clearly documenting the reasons for their decision-making. Equally, by securing expert advice from an employment law specialist when reviewing any ‘Provision Criterion or Practice’, this can help to ensure that an employer’s decision-making is sound and lawful, enabling them to make informed decisions as to the best way in which to run their business and to fairly manage their workforce.
Provision Criterion or Practice FAQs
[wp-faq-schema accordion=1]
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.
