In disability discrimination claims, one of the most dreaded aspects for everyone involved can be the identification of the provision, criterion or practice (PCP) which has led to the potential discrimination.
A recent case heard in the Employment Appeal Tribunal dealt with the question of whether requiring a disabled employee to attend a redundancy selection interview could be a PCP and whether it placed the claimant at a substantial disadvantage.
In his latest article, Employment Solicitor Chris Dobbs looks at that case in more detail and provides some advice for employers.
What is a PCP discrimination?
A PCP can broadly be thought of as a universally applied requirement which, while not directly discriminatory, can place individuals with certain protected characteristics at a disadvantage.
One example commonly used in sex discrimination claims is inflexible working hours which are routinely held to be indirectly discriminatory against women who are disproportionately more likely to have care commitments.
PCPs are most commonly discussed in disability discrimination cases in relation to reasonable adjustment claims, where the PCP is often the thing which requires an adjustment.
Is having a PCP automatically discriminatory?
It is not necessarily discriminatory just to have a PCP and even the discriminatory effect of them can sometimes be justified if the employer can show that:
- the implementation of the policy was necessary, and
- that there was no reasonably less discriminatory way in which the outcome could be achieved.
Using the example above, successful defences might include the need for certain shifts to cover international markets depending on the nature of the work.
Can a redundancy process interview be a PCP?
Yes, confirmed both the tribunal and Employment Appeal Tribunal in the case of Hilaire v Luton Borough Council.
In this case every individual involved in the redundancy consultation was required to attend an interview if they wished to apply for other jobs within the organisation.
This was a practice applied to all those who were involved and therefore did amount to a PCP for the purposes of the claim.
The claimant argued that he should have been slotted into a new role within the reorganised structure without the need for an interview.
Was the claimant at an unfair disadvantage?
It is not enough to simply show that there was a PCP. The claimant must also show that being subjected to that PCP placed them at a substantial disadvantage.
In the original tribunal hearing, the Employment Judge concluded that the Claimant was not placed at a substantial disadvantage because he could have chosen to engage in the process, but did not do so due to his lack of belief and confidence in the fairness of the interviews.
The tribunal concluded that he believed his managers were conspiring to dismiss him regardless of the interview outcome.
Did the EAT disagree?
Yes, the Employment Appeal Tribunal partly disagreed and found that the original decision had misapplied the test for substantial disadvantage.
The correct approach to decide if there was a substantial disadvantage arising from the PCP was whether or not it became more difficult for the employee to engage with the process, procedure, or similar as a result of his disability.
Was the PCP discriminatory?
The claimant’s disability in this case affected his memory, concentration and social interaction skills.
It was therefore evident, the Employment Appeal Tribunal concluded, that such effects would be detrimental to his ability to engage with an interview process. The PCP was, therefore, potentially discriminatory.
What did the Employment Appeal Tribunal find?
However, the Employment Appeal Tribunal did agree with the original tribunal's judgement that the reason the claimant had not participated in the interviews was not the effect of his disability.
Instead, he had chosen not to attend them because of his belief that the interview process was already weighted against him.
The claimant’s claim therefore failed because the disadvantage he suffered could not be attributed to his disability if he actively chose not to engage in the interviews.
An Employment Solicitor’s View
Chris Dobbs, Employment Solicitor at Frettens, said: “Although the claim ultimately failed, the legal basis on which it was brought was well founded.
No matter the purpose of a process or procedure, it is important to ensure that employees with disabilities are able not only to attend interviews, for example, but that they are also able to actively engage in the process.
The Employment Appeal Tribunal did go on to consider what would have amounted to a reasonable adjustment in this case and confirmed that if an adjustment is made it should have the potential to mitigate the effect created by any disadvantage.
Reasonable adjustments, however, are not designed to give disabled employees an advantage over others; the purpose of such an approach is to ensure equity and parity of opportunity.”
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Employment & HR Solicitors
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