1. The concept of a “provision, criterion or practice” (“PCP”) is one with which employment lawyers will all be familiar. It crops up in the statutory provisions which cover indirect discrimination (s 19 Equality Act 2010) and reasonable adjustments (ss 20 / 21 Equality Act 2010).

2. It is easy to assume that the concept is straightforward: see the helpful words of Simler LJ in Ishola v Transport for London [2020] EWCA Civ 112

35. The words “provision, criterion or practice” are not terms of art, but are ordinary English words. I accept that they are broad and overlapping, and in light of the object of the legislation, not to be narrowly construed or unjustifiably limited in their application [. . .]

36. The function of the PCP in a reasonable adjustment context is to identify what it is about the employer’s management of the employee or its operation that causes substantial disadvantage to the disabled employee. The PCP serves a similar function in the context of indirect discrimination [. . . ] To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply. I accept of course (as Mr Jones submits) that the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply.

[. . .]

38. In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again [. . .]

3. So far, so good. However, one might start to wonder about the following questions:

(1) Is the PCP for an indirect discrimination claim the same as for a reasonable adjustments claim?

(2) If not, then how do they differ?

Indirect discrimination vs. reasonable adjustments: some differences

4. Note that s 19 and s 20 differ substantially. In particular, s 19 requires that the PCP be applied to the claimant:

19 Indirect discrimination

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

5. In contrast, s 20 talks in terms of the PCP itself placing a disabled person at a substantial disadvantage:

20 Duty to make adjustments

(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

[. . .]

6. Note also the observation of Simler LJ in Ishola – “the PCP [in a s 20 case] serves a similar function in the context of indirect discrimination . . .” (emphasis added)

7. Linden J made some helpful observations in The University of Bristol v Dr Robert Abrahart [2024] EWHC 299 (KB) at paragraphs 255 – 256:

255. Although the formulation of the test under section 19(2)(d)is the same as under section 15 (1(b), a section 19 claim typically raises questions of wider application than claims under sections 15 and 20. At issue is the generally applicable PCP itself – whether the oral assessments in this case were a proportionate means of achieving a legitimate aim – rather than the question whether, in the circumstances of a particular case, adjustments to the PCP should be made, or it should be disapplied. The impact which is being considered is the impact of the PCP on a group of people including those who share a particular disability (see section 6(3) of the 2010 Act ). The test for proportionality therefore requires that the disadvantage which is weighed in the balance under Bank Mellat question (4) is the group disadvantage which results from the PCP. The proportionality question is also likely to be answered by reference to wider, “macro”, considerations than the effect of the unfavourable treatment ( section 15 ) or the PCP ( section 20 ) on the particular disabled person who brings the claim.

256. It follows from this that claims under section 19, on the one hand, and claims under sections 15and 20, on the other, do not necessarily stand or fall together. If a claimant wins under section 19 it is likely that they would win under sections 15 and 20 as well assuming that all of these causes of action were based in the same facts. But the converse is not the case: a claimant might lose under section 19 but nevertheless win under section 20 and/or 15 for example if the PCP is justified having regard to wider considerations but reasonable adjustments ought to have been made in the individual case and/or the unfavourable treatment would not then have occurred.

8. Further:

(1) In a reasonable adjustments claim relating to absence / attendance management, case law establishes that it is the application of the absence management policy, rather than the terms of the policy, which constitutes the PCP for the purposes of the s 20 claim (see below)

(2) However, that analysis causes problems for s 19: if the PCP is the application of the policy, then it does not make grammatical sense to ask e.g. whether the employer applied the application of the policy to the claimant.

9. That, of course, is consistent with how PCPs for s 19 claims are identified. Taking two examples (both from Essop and ors v Home Office (UKBA) [2017] UKSC 27):

(1) “. . . the requirement to pass a Core Skills Assessment (CSA) as a pre-requisite to promotion to certain civil service grades” (Essop)

(2) “. . . the Prison Service pay scheme for chaplains, which incorporates pay progression over time and thus pay is related to length of service . . .” (Naeem)

10. A “reasonable adjustments” PCP may well be narrower than the PCP for a s 19 claim. In Ahmed v Department for Work and Pensions EA-2019-0008650-DA HHJ Beard commented

A PCP, simply put, is where the employer has an expectation of the employee, and either the same expectation is made of other employees or there is an element of repetition in the expectation with the particular employee . . .

11. So, a “reasonable adjustments” PCP might be an expectation that a certain employee carries out certain duties. That sits uncomfortably as a s 19 claim. Moreover, note the comments in Essop at paragraphs 40 – 41: the pool chosen (for a s 19 claim) should be that which suitably tests the particular discrimination complained of. It should consist of the group which the PCP affects (or would affect). “. . . all the workers affected by the PCP should be considered . . . [i]n general . . . identifying the PCP will also identify the pool for comparison.”

12. In Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265, a claim for failure to make reasonable adjustments & of “discrimination arising” under s 15 Equality Act 2010, relating (in terms) to attendance management, Elias LJ said the following:

46. [. . .] There are in my view two assumptions behind the EAT’s reasoning, both of which I respectfully consider to be incorrect. The first is that the relevant PCP was the general policy itself. If that is indeed the correct formulation of the PCP, then the conclusion that the disabled are not disadvantaged by the policy itself is inevitable given the fact that special allowances can be made for them. It may be that this was the PCP relied upon in the Ashtoncase. But in my view formulating the PCP in that way fails to encapsulate why a sickness absence policy may in certain circumstances adversely affect disabled workers – or at least those whose disability leads to absences from work. Moreover, logically it means that there will be no discrimination even where an employer fails to modify the policy in any particular case. The mere existence of a discretion to modify the policy in the disabled worker’s favour would prevent discrimination arising even though the discretion is not in fact exercised and the failure to exercise it has placed the disabled person at a substantial disadvantage.

47. In my judgment, the appropriate formulation of the relevant PCP in a case of this kind was in essence how the ET framed it in this case: the employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions. That is the provision breach of which may end in warnings and ultimately dismissal. Once the relevant PCP is formulated in that way, in my judgment it is clear that the minority member was right to say that a disabled employee whose disability increases the likelihood of absence from work on ill health grounds, is disadvantaged in more than a minor or trivial way. Whilst it is no doubt true that both disabled and able bodied alike will, to a greater or lesser extent, suffer stress and anxiety if they are ill in circumstances which may lead to disciplinary sanctions, the risk of this occurring is obviously greater for that group of disabled workers whose disability results in more frequent, and perhaps longer, absences. They will find it more difficult to comply with the requirement relating to absenteeism and therefore will be disadvantaged by it.

(emphasis added)

13. The same logic was applied in Martin v City and County of Swansea EA-2020-000460-AT. It is necessary to distinguish between the terms of an absence management policy and its application. A policy can result in a disabled person being put at a substantial disadvantage because the policy is more likely to be applied to a disabled person in comparison with persons who are not disabled because of the greater likelihood of sickness absences, even if there is a discretion in the policy that could be exercised that would avoid the disadvantage. In Martin, the EAT considered that

44. . . the claimant did not merely assert that the PCP was the terms of the Management of Absence Policy, but contended it resulted from the application of the policy to her resulting in her dismissal . . . [a]s a disabled person, the claimant was at increased risk of absence that could result in dismissal . . .[t]he application of the policy put the claimant at a disadvantage because she was at greater risk of absence than people who are not disabled . . .”

14. Against that background, the EAT’s comment that “[a] policy can result in a disabled person being put at a substantial disadvantage because [it] is more likely to be applied . . .” is perhaps slightly opaque.

15. The essential point is this: Griffiths tells us that if the PCP (in a reasonable adjustments claim) is formulated as “the general [attendance management, etc.] policy”, then if the general policy contains a discretion – such that allowances can be made for disabled persons – then disabled persons will not be disadvantaged by the policy itself. But Griffiths also tells us that the appropriate formulation of the PCP in such a case is that the employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions.

Conclusion

16. We can now answer the questions posed at the outset.

17. First, the PCP for an indirect discrimination claim might be, but need not be, the same as for a reasonable adjustments claim.

18. In particular, a tighter focus on the affected employee is likely to be more appropriate for a reasonable adjustments claim: what is it about the employer’s management of that employee which is causing problems?

19. In contrast, an indirect discrimination claim looks for a PCP which is – to use the words of Lady Hale in Essop – “. . . applied indiscriminately to all . . .”. Moreover, the need to demonstrate group disadvantage (under s 19) implies that the PCP needs to be chosen with an eye on group disadvantage (rather than individual disadvantage).

20. A further point of contrast is that s 19 appears to permit consideration of a PCP which would be applied, which would cause group disadvantage, and which would put the individual at a disadvantage – whereas s 20 deals only with actual disadvantage. That is a matter for a future post.

21. In practical terms, it is worth bearing in mind the obvious point: claims under ss 19 and 20 / 21 are different claims, and the approach to identifying the PCP in each case should be governed by the mechanics of each section. Hopefully, the case law set out above will be of some use in that exercise.

Ezra Macdonald