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What is a provision, criterion or practice (PCP)?
[ch 6: page 161]There is no definition in the EA 10 and the phrase could refer to any of the employer’s policies, procedures, contract terms or practices. Typical examples might include rules about working hours, absence management procedures and so on, but the phrase is very wide. It does not matter whether a PCP is directly applied to a claimant, as long as its existence puts him or her at a disadvantage. For example:
The ambulance service practised a policy known as “hot-desking” which required call centre staff to work at any desk station that was free at the start of each shift. The employer did not impose this practice on the claimant, Mr Roberts, because he suffered from social anxiety disorder, which meant that he struggled to cope with a different desk each day. Nevertheless, he was adversely affected by the policy even though it was not applied to him directly because the requirement for everyone else to “hot desk” made it impossible for a desk to be reserved for him. As a result, the hot-desking is a PCP that the ambulance service was required to justify.
Roberts v North West Ambulance Service [2012] UKEAT/0085/11
A PCP can be a policy already in place, or something the employer intends to introduce in the future.
In Braithwaite v HCL Insurance BPO Services Limited [2015] UKEAT/0152/14, the EAT confirmed that requiring employees to sign up to new less favourable contract terms or else lose their jobs is a PCP that an employer must justify where it adversely affects disadvantaged groups (see page 179).