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A practical view from Tribunal: Provisions, Criteria and Practices


Reproduced from Practical Law with the permission of the publishers. For further information visit www.practicallaw.com or call 020 7542 6664.

In our regular feature for Practical Law, “A practical view from Tribunal”, Daniel Northall shares practical guidance from our recent experiences in the employment tribunal.

PCPs seem to strike
fear in the heart of even the most seasoned employment practitioner. “Producing
Complete Panic” would be more apt.

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.

 

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