Indirect Discrimination – Has a Provision, Criterion or Practice Been Applied?
As part of the Equality Act 2020, employees must be able to prove that a provision, criteria, or practice has been put in place which discriminates against them, if they wish to claim indirect discrimination. Indirect discrimination occurs when the employer applies a PCP (Provision, Criterion, or Practice), which puts them at a disadvantage, based on a protected characteristic. The protected characteristic may be age, disability, marriage, and civil partnership, sex, sexual orientation, pregnancy and maternity, religion, belief, race, and gender reassignment.
How do you identify PCP?
Defining PCP can be challenging, as there is no clear definition in the Equality Act. An employee being placed at a disadvantage through a practice, rule, or condition on the terms of their employment is an excellent way to explain it. You can find PCPs on employment contracts, or any document which sets out a rule or regulation. It can also be a verbal rule or regulation. The employee must identify the PCP, and then prove that it puts them at a disadvantage.
Examples of PCP
One example of a PCP is a requirement that the working hours of a role are changed from part-time to full time. This rule may be a form of indirect discrimination against a protected characteristic, in this case, gender. Women are more likely to work part-time, as a result of childcare commitments. In 2018, 41% of women were working part-time, compared to only 13% of men. According to the labour market statistic for the ONS, the number of women working part-time has increased by over 50% since 1992. In this case, the PCP (the requirement of the role) changing from part-time to full-time could cause the person to lose their job. The affected person could then claim discrimination due to injury to feelings, and unfair dismissal, if employment duration is over two years.
The company may not be intentionally discriminating against women. They may feel that the needs of the role have changed, but employers need to be very careful when it comes to protected characteristics.
Another example could be an employer introducing a rule (PCP) that every employee must start working on a Saturday. What if an employee can’t work on a Saturday for religious reasons? Setting out these restrictions could be viewed as indirect discrimination.
Get in touch
If you want to make changes to the rules and regulations of your organisation, or you are worried about indirect discrimination, get in touch with us today to discuss. Similarly, if you are an employee who feels affected by a PCP, speak to us today for a confidential chat.