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What is a Provision Criterion or Practice (a “PCP”)?

A provision criterion or practice (PCP) is a legal term used in discrimination law.

In particular, PCP is used in indirect discrimination claims.  In order to prove indirect discrimination, firstly, an employee must prove that a provision criterion or practice has been applied to them. See Section 19(1) of the Equality Act 2010.

The employee must be able to prove that the PCP, when applied to them, puts them at a disadvantage because of their race, sex, age etc.

Defining a provision criterion or practice (PCP)

The Equality Act does not define “provision criterion or practice”.  This means it can have a very broad meaning.  In reality, the the employee simply has to establish that something at work, whether it’s a rule, a practice, a requirement or a condition, puts them at a disadvantage.

A classic example

A classic example of a PCP is an employer’s requirement that a position be worked on a full time basis. 

This requirement is potentially disadvantageous to women. The reason being that statistically, more women than men need to work part-time (because of childcare commitments). 

As such, if a role which has previously been done by a woman on a part-time basis is made into a full-time role, which the woman cannot do because of childcare commitments, then she has been forced out of her job by the application of a PCP. 

She has been indirectly discriminated against and can make a claim for injury to feelings (as well as unfair dismissal if she has been working there for longer than 2 years).

Identifying PCPs

PCPs can be set out in employment contracts, handbooks, letters, memos to staff and notices.  In fact they can be contained in any type of rule or regulation set out by the employer. 

Furthermore, they don’t have to be in writing or explicitly stated in any way. For example a certain custom and practice adopted by an employer, can be treated as a PCP.

Once the PCP has been identified by the employee, they must then go on to prove that, when the PCP was applied to him or her, it is also applied to people who don’t share the protected characteristic in question. 

Using the example above, the woman whose job has been made full time must provide proof of this. Namely, that the full time requirement applies to people who don’t share a protected characteristic, i.e. men. 

Comparators

If no comparator can be identified (for example a man doing the same job) the employee can rely on a hypothetical comparator.

Summary

A provision criterion or practice, is a rule which, when applied to all, puts certain individuals at a disadvantage. If the individual can prove this, they may be able to make a claim for indirect discrimination.