Late Nights, Early Mornings

We're long familiar with the concept of a 'provision, criterion or practice' (PCP) for the purposes of an indirect discrimination claim. For anyone whose memory needs a quick jog, let's say an employer applies a PCP to an employee, Ann. Ann has a protected characteristic. The PCP is also applied (or would be applied) to other staff not sharing that particular characteristic – in other words, it is, on the face of it, neutral. But it puts Ann and persons with whom she shares her protected characteristic to a particular disadvantage and – crucially – the employer cannot show the PCP to be a proportionate means of achieving a legitimate aim. The oft-cited examples include a requirement for full time working (indirectly discriminatory against women) or height requirements for particular police roles (now mostly phased out).

Historically, the legislation referred to a 'requirement or condition' rather than a PCP. On the face of it, this was a harder bar for claimants to reach - because it made claims based on criteria which were stated to be 'desirable' rather than 'essential' problematic. The more recent concept of a PCP is broader and can on the face of it cover policies, informal practices and potentially single decisions (e.g, decisions about part time working requests), though the case law in this respect is unhelpfully inconsistent. The degree of 'coercion' involved in a PCP was analysed by the Court of Appeal in a decision from last month, in the case of United First Partners Research v Carreras.

Mr Carreras had brought a disability discrimination and constructive dismissal claim based on a failure to make reasonable adjustments. He worked long hours for a brokerage firm. He reduced his hours following an accident, but claimed that as time passed, he felt under ongoing pressure to increase them again in line with other staff. The employment tribunal's view had been that he was not 'required' to work long hours (e.g as a matter of contract or of coercion) rather, it was a cultural expectation and a pattern of repeated requests. The tribunal found that this could not amount to a PCP. However, the Court of Appeal found that the concept of 'requiring' does not necessarily carry any suggestion of coercion and might represent no more than 'a strong form of request'. This was consistent with Mr Carreras' indication that he felt a strong sense of pressure to accede to the repeated requests made of him to work longer. The court agreed that this was capable of amounting to a PCP (specifically, a 'practice'). As such, there was consistency with his pleaded case that he was 'required' to work long hours.

Arguably, all this could have been avoided had the pleaded claim been clearer (the use of the word 'required' set a number of red herrings sailing out to sea) – but what the case does demonstrate is the breadth of the concept of a PCP and the need for an employer to think very carefully if seeking to rely on a tenuous distinction between a 'requirement' and (say) an 'expectation' for indirect discrimination purposes.

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