In order to claim indirect discrimination, an employee must be able to show that the employer has applied a ‘provision, criterion or practice’ (PCP) to the workplace that puts them at a disadvantage compared to others. Very often the need to show a PCP has been lazily interpreted as whether a ‘policy’ exists. It is much wider than this as is demonstrated by two recent cases in the Employment Appeal Tribunal:
Pendleton v Derbyshire County Council
A practising Anglican Christian was dismissed from her position as a teacher because she refused to leave her husband. He had been imprisoned for taking indecent pictures of boys in the changing rooms of the school where he was headteacher. She claimed that as a Christian, the requirement that she leave her husband placed her at a particular disadvantage. She would have to break marriage vows that she had made before her god. The employment tribunal held that such a requirement cannot amount to a ‘practice’ because it was a one off event. The EAT disagreed. The governors of the school had stated that the requirement that she leave her husband in order to remain in employment would have been applied to anyone in her position. They had created a ‘practice’ and as such a PCP existed allowing Ms Pendleton to claim indirect discrimination.
Carreras v United First Partnership Research
An employee suffering fatigue, headache and concentration difficulties following a bike accident was asked to work longer than his typical working hours of 8am to 7pm. When he objected, he was berated. The employment tribunal held that an expectation that an employee works long hours was not a ‘practice’. The EAT overruled this. It said it was necessary to look at the reality of the situation. An employer’s ‘expectation’ that long hours would be worked was in reality a requirement, or a ‘practice’. As such, the employee could claim for indirect disability discrimination.
It is quite simple - if an employee is required or expected to work in a particular way, this is likely to be a PCP.