What is PCP?
PCP stands for provision, criterion or practice. PCP is a legal term used in indirect sex discrimination cases, refers to a factor/requirement that is applied uniformly to all employees yet unintentionally disadvantages one or more of them.
Glover v Lacoste UK Ltd
Ms. Glover (G) worked as a full-time manager in a shop. While on maternity leave, she requested flexible working and asked to work a three-day week. The request was declined on the basis that managers had to work full-time. After appealing this decision, Lacoste (L) offered her a four-day week on trial, provided she was flexible as to which four days were worked. G found this unacceptable, as this would not allow her to make adequate childminding arrangements. G responded that unless L reconsidered her request, she would have no option but to resign and claim constructive dismissal. L relented and allowed G to return for her requested hours. She never actually returned as she furloughed at the time.
However, she issued a claim for indirect sex discrimination, claiming that L required fully flexible working, which was a "provision, criterion, or practice" that put her (and women) at a disadvantage. The Employment Tribunal rejected her claim based on the fact that L required full-time work. It ruled that the PCP requiring flexible working had not been applied—she was never required to work full-time, and her original request had been accepted—so there was no indirect discrimination and hence no detriment. G appealed to the Employment Appeal Tribunal (EAT).
The EAT disagreed with the ET decision, stating that they had misinterpreted the caselaw. Their view was that the PCP requirement was used for indirect discrimination. The caselaw established the authority that the determination of a flexible working request did constitute a PCP, and it applied even if an employee had not returned to work or attempted to work under the new arrangement. A detriment can be suffered even if the employee has not returned to work. The case was remitted to the ET for new consideration.
Comment.
This case highlights the fact that a successful appeal against a flexible work request does not necessarily remedy any disadvantage suffered because of the initial request being rejected. Moreover, this is the case even if the employee had not actually worked the pattern that is alleged to be discriminatory. L’s offer to work a fully flexible four-day week was an attempt to compromise, and G was never required to work under this PCP. The decision makes it clear that the requirement to work is not a prerequisite for an employee to claim indirect discrimination.
Employers should give careful consideration to flexible working requests made during maternity leave, as this case highlights the risks. As this area of law can be daunting, coupled with the usual laws around maternity, employers are advised to call the free telephone advice service to obtain expert advice to avoid the pitfalls, unnecessary grievances, and potential tribunal claims.
