What is a Provision Criterion or Practice (a “PCP”)?

What is a Provision, Criterion or Practice (PCP)?

A provision, criterion or practice, commonly abbreviated to PCP, is a legal term used in UK discrimination law to describe any workplace rule, requirement, policy, procedure or way of doing things that an employer applies to its workforce.

The concept is central to two types of discrimination claim under the Equality Act 2010: indirect discrimination (section 19) and failure to make reasonable adjustments (sections 20 and 21). In both cases, the claimant must identify a PCP that causes them a disadvantage connected to a protected characteristic.

The Equality Act deliberately does not provide a statutory definition of provision, criterion or practice. The EHRC Employment Statutory Code of Practice states that the phrase should be construed widely to include any formal or informal policies, rules, practices, arrangements, criteria, conditions, qualifications or provisions.

As Lady Justice Simler explained in Ishola v Transport for London [2020] EWCA Civ 112, the words are not terms of art but ordinary English words. They are broad and overlapping, and in light of the legislation’s purpose, should not be narrowly construed or unjustifiably limited in their application.

The Legal Framework: Section 19 of the Equality Act 2010

Under section 19 of the Equality Act 2010, indirect discrimination occurs when an employer applies a provision, criterion or practice that is discriminatory in relation to a relevant protected characteristic.

For a PCP to be discriminatory under section 19, four conditions must be met:

1. The employer applies or would apply the PCP to persons who do not share the protected characteristic. This means the PCP must be applied to everyone, not just to people with a particular protected characteristic. If it only applies to people with a protected characteristic, that would be direct discrimination, not indirect.

2. The PCP puts or would put persons who share the protected characteristic at a particular disadvantage compared to those who do not. This is about group disadvantage. You must show that the PCP disadvantages people who share your protected characteristic as a group, compared to those who don’t have it.

3. The PCP puts or would put the claimant at that disadvantage. The individual bringing the claim must personally suffer the disadvantage caused by the PCP. It’s not enough that others with your protected characteristic are disadvantaged; you must be too.

4. The employer cannot show that the PCP is a proportionate means of achieving a legitimate aim. This is the objective justification defence. If an employer can prove the PCP serves a genuine business need and is proportionate, it may be lawful despite its discriminatory effect.

PCPs and Reasonable Adjustments

The concept of a provision, criterion or practice also applies to reasonable adjustment claims under sections 20 and 21 of the Equality Act 2010. Under section 20(3), where a PCP puts a disabled person at a substantial disadvantage compared to non-disabled people, the employer has a duty to take reasonable steps to avoid that disadvantage.

The function of identifying a PCP in reasonable adjustment cases is different from indirect discrimination claims. As the Court of Appeal explained in Ishola, the purpose of identifying a 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.

Unlike indirect discrimination (which focuses on group disadvantage), reasonable adjustment claims focus on individual disadvantage to the particular disabled person bringing the claim.

Provision, Criterion or Practice Examples

Understanding what can constitute a PCP is best illustrated through practical examples. These examples show how PCPs arise across different protected characteristics.

Full-time Working Requirements

A requirement that all employees must work full-time is a classic example of a PCP that may constitute indirect sex discrimination. Statistically, women are more likely than men to have primary childcare responsibilities, making it harder for them to work full-time hours. If an employer insists a role must be full-time without objective justification, a woman who cannot comply due to childcare responsibilities may have a valid claim.

In British Airways plc v Starmer [2005] IRLR 862, the Employment Appeal Tribunal held that a one-off management decision about part-time working could amount to a PCP, even though it was a discretionary decision not applying generally to others.

Shift Patterns and Working Hours

Requiring employees to work specific shifts, such as early morning starts or weekend work, can disadvantage people with certain protected characteristics. For example, requiring all staff to work on Saturdays may indirectly discriminate against Jewish employees who observe the Sabbath, or requiring 8am starts may disadvantage women who do the school run.

Attendance and Sickness Absence Policies

Many employers operate attendance management policies with trigger points for disciplinary action. Such policies can be PCPs that disadvantage disabled employees whose disabilities cause them to take more sick leave. In Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265, the Court of Appeal confirmed that such policies can require reasonable adjustments for disabled employees.

Expectation of Long Working Hours

Even an informal expectation to work long hours can constitute a PCP. In United First Partners Research v Carreras [2018] EWCA Civ 323, the Court of Appeal held that an expectation (as opposed to a formal requirement) to work long hours was sufficient to amount to a PCP. Mr Carreras had suffered a cycling accident causing chronic fatigue, and his employer’s expectation that he work late amounted to a practice that put him at a substantial disadvantage as a disabled person.

The Court emphasised that tribunals should adopt a real world approach. A requirement does not necessarily involve coercion; a pattern of repeated requests creating pressure to comply can be enough.

Qualification and Experience Requirements

Requiring applicants to have 10 years’ experience may disadvantage younger workers and could constitute indirect age discrimination. Similarly, requiring UK qualifications may disadvantage candidates of certain nationalities.

Height and Physical Requirements

Requirements relating to height or physical characteristics can indirectly discriminate on grounds of sex. As illustrated by the Greek police case (Kalliri), a minimum height requirement of 1.7m applied equally to all applicants indirectly discriminates against women, who are on average shorter than men.

Dress Codes and Appearance Policies

Dress codes prohibiting head coverings may indirectly discriminate against employees of certain religions or beliefs who wear religious headwear, such as hijabs, turbans or kippahs.

Recruitment Policies

Internal only recruitment policies can be PCPs. If a company only advertises a position internally and the existing workforce is predominantly one sex, this may constitute indirect discrimination against the underrepresented sex.

What Does Not Constitute a PCP

Not every act or decision by an employer amounts to a provision, criterion or practice. The courts have established important boundaries.

Pure One-off Acts Without Future Application

In Ishola v Transport for London [2020] EWCA Civ 112, the Court of Appeal held that a one-off decision in dealings with one individual, with nothing to suggest it would apply in future cases, does not constitute a PCP. All three words, provision, criterion and practice, carry the connotation of a state of affairs indicating how similar cases are generally treated or how a similar case would be treated if it occurred again.

A practice connotes some form of continuum in the sense that it is the way things generally are or will be done. While a one-off decision can be a practice, it is not necessarily one. There must be evidence it would be applied to others or to a hypothetical similar case in future.

Individual Treatment Without Pattern

If an employee is treated badly but there is no evidence of a wider practice or policy that would apply to others, this does not amount to a PCP. In Nottingham City Transport v Harvey, the application of a disciplinary process in one unfair way did not constitute a practice where there was nothing to suggest a hypothetical comparator would be treated the same unfair way.

Section 19A: Indirect Discrimination Without the Protected Characteristic

From 1 January 2024, the Equality Act 2010 (Amendment) Regulations 2023 inserted a new section 19A into the Equality Act. This significant change means you can now claim indirect discrimination if you suffer “substantively the same disadvantage” as those with a protected characteristic, even if you don’t have that characteristic yourself.

Previously, only someone possessing the protected characteristic could bring a claim. For example, only a woman could claim indirect sex discrimination about inflexible working practices, even if a man with childcare responsibilities suffered the same disadvantage.

Requirements for a Section 19A Claim

To bring a claim under section 19A, you must show:

• The employer applies a provision, criterion or practice (PCP) to you
• The PCP puts people with a protected characteristic at a particular disadvantage
• You suffer substantively the same disadvantage as those with the characteristic
• The employer cannot show the PCP is a proportionate means of achieving a legitimate aim

Section 19A applies to all protected characteristics except pregnancy and maternity.

Practical Examples

Working fathers: An employer requires full-time hours, 9am to 5pm. This disadvantages women, who statistically bear more childcare responsibilities. A father unable to meet this requirement because of his childcare commitments can now claim under section 19A. He suffers the same disadvantage as working mothers, for the same reason.

Temporary injury: An employer’s sickness policy triggers warnings after a set number of absences with no discretion. This disadvantages disabled employees. An employee with a temporary injury (not meeting the legal definition of disability) who faces the same disadvantage may bring a section 19A claim.

Key Case: British Airways v Rollett [2024] EAT 131

The leading authority is British Airways plc v Rollett & Others [2024] EAT 131. Following Covid-19, British Airways introduced new scheduling practices. Cabin crew brought indirect discrimination claims, including employees who did not have the relevant protected characteristic but suffered the same disadvantage. The EAT confirmed that claimants can bring indirect discrimination claims without possessing the protected characteristic, and that section 19A lawfully implements EU law principles from the CHEZ case.

Same Disadvantage vs Associative Discrimination

Section 19A covers “same disadvantage” claims, where you and the protected group suffer the identical disadvantage for the same reason. This differs from traditional “associative” discrimination, where you suffer because of your connection to someone with a protected characteristic (for example, a carer disadvantaged because they look after a disabled relative). Whether section 19A extends to true associative claims remains uncertain.

Identifying and Formulating a PCP

Correctly identifying and formulating the PCP is crucial to the success of your claim. Get this wrong, and your claim may fail at the first hurdle.

Where to Look for PCPs

PCPs can be found in many places:

• Employment contracts
• Staff handbooks and policies
• Written procedures and guidance
• Emails, letters and memos
• Job advertisements and role requirements
• Unwritten customs and practices
• Informal expectations and assumptions
• Management decisions that would apply to others

Formulating the PCP Correctly

The way you frame the PCP matters. It should be framed at a level of generality that captures the practice causing disadvantage but also applies to others, not just you. For example, if you are challenging an attendance policy, the PCP might be formulated as “requiring employees to maintain a certain level of attendance in order not to be subject to disciplinary sanctions.”

It’s important to focus on what it is about the employer’s management or operation that causes the disadvantage, not simply the unfair treatment itself.

“In my experience, cases run into difficulties because the PCP is not formulated properly. It needs to be specific enough to capture the actual disadvantage you’ve suffered, but general enough that it applies, or would apply, to others in similar situations. Don’t make it so narrow that it only describes what happened to you.”

Tom Street Principal Solicitor, Tom Street & Co.

The Objective Justification Defence

Even if a PCP puts people with a protected characteristic at a disadvantage, it will not be unlawful indirect discrimination if the employer can show objective justification. Under section 19(2)(d), the employer must demonstrate that the PCP is a proportionate means of achieving a legitimate aim.

What is a Legitimate Aim?

A legitimate aim must be a genuine and objective reason, not one that is discriminatory in itself. Examples include:

• Health and safety considerations
• Business efficiency and operational needs
• Customer service requirements
• Security considerations
• Meeting statutory or regulatory requirements

Cost savings alone cannot be a legitimate aim, although financial constraints can be considered alongside other factors. The Acas guidance confirms that financial reasons alone are unlikely to justify discrimination.

What is Proportionate?

The proportionality test involves a balancing exercise. The tribunal will consider whether the importance of the legitimate aim outweighs the discriminatory effect of the PCP. As Lord Reed explained in Bank Mellat v HM Treasury [2013] UKSC 39, measures must be appropriate and necessary to achieve the objectives, and the disadvantages caused must not be disproportionate to the aims pursued.

Crucially, if there is a less discriminatory way to achieve the same aim, the PCP is less likely to be proportionate. Employers should consider whether alternative measures could meet their business needs without causing the same discriminatory impact.

Comparators in Indirect Discrimination Claims

To establish indirect discrimination, you need to show that the PCP puts your group at a particular disadvantage compared to others. This involves identifying an appropriate comparator pool.

As the Supreme Court explained in Essop v Home Office [2017] UKSC 27, the pool should be those workers affected by the PCP. All workers to whom the PCP is applied should be considered. In general, identifying the PCP will also identify the pool for comparison.

For example, if the PCP is a requirement to work full-time, the pool would be all workers to whom that requirement applies. You would then compare how many women versus men in that pool can comply with the requirement.

You don’t need to prove why the PCP disadvantages your group. It is enough to show statistically or evidentially that it does.

Time Limits for PCP Discrimination Claims

Claims for indirect discrimination must be brought to the Employment Tribunal within three months minus one day from the date of the discriminatory act. For a continuing practice, time runs from the end of the period during which the PCP was applied.

Before submitting a tribunal claim, you must first notify Acas to start Early Conciliation. From 1 December 2025, the Early Conciliation period has been extended from six weeks to twelve weeks.

If you miss the time limit, the tribunal has discretion to extend time if it considers it just and equitable to do so. However, this discretion is exercised sparingly, so you should always aim to submit your claim within the primary time limit.

Compensation for Indirect Discrimination

If you succeed in an indirect discrimination claim, you may be entitled to compensation including:

Financial losses: Past and future loss of earnings, pension loss and other financial losses caused by the discrimination. Unlike unfair dismissal, compensation for discrimination is uncapped.

Injury to feelings: Compensation for the hurt, humiliation and distress caused by the discrimination. Awards are calculated using the Vento bands, which from 6 April 2025 are:

Note that in cases of unintentional indirect discrimination, where the employer did not intend to discriminate, the tribunal must consider other remedies (such as a declaration or recommendation) before awarding compensation.

How to Challenge a PCP at Work

If you believe a workplace rule or practice is indirectly discriminating against you, there are steps you can take:

1. Document everything. Keep records of the PCP, how it affects you and your group, and any communications with your employer about it.

2. Raise a grievance. Many employers are unaware their policies have discriminatory effects. A formal grievance gives your employer the opportunity to review and potentially change the policy.

3. Request reasonable adjustments. If you are disabled and the PCP puts you at a substantial disadvantage, request that your employer makes reasonable adjustments to remove or reduce the disadvantage.

4. Seek legal advice early. Discrimination claims are complex and time-limited. Getting professional advice early can help you understand your options and avoid missing crucial deadlines.

5. Contact Acas. Before bringing a tribunal claim, you must go through Early Conciliation with Acas. This process can sometimes resolve disputes without the need for tribunal proceedings.

Frequently Asked Questions

What does provision, criterion or practice mean?

A provision, criterion or practice (PCP) is any workplace rule, requirement, policy, procedure or way of doing things that an employer applies to its employees. It includes both formal written policies and informal unwritten practices or expectations. The term is deliberately broad and includes anything from contractual terms to informal workplace customs.

Can a one-off decision be a PCP?

A one-off decision can be a PCP if there is evidence it would apply to others in similar situations or would be applied again in future if a similar case arose. However, a purely individual decision affecting only one person, with no indication it would apply to anyone else, is not a PCP. The key question is whether the decision carries the connotation of being the way things are generally done.

What is the difference between direct and indirect discrimination?

Direct discrimination occurs when someone is treated less favourably because of a protected characteristic. Indirect discrimination occurs when a seemingly neutral PCP applies to everyone but puts people with a protected characteristic at a particular disadvantage. For example, refusing to hire someone because they are a woman is direct discrimination; requiring all employees to work full-time, which disadvantages women with childcare responsibilities, is indirect discrimination.

Can informal practices be PCPs?

Yes. PCPs do not need to be written down or formally documented. An expectation to work long hours, an unwritten rule about dress, or a habitual way of doing things can all constitute PCPs. In the Carreras case, an expectation (rather than formal requirement) to work late was held to be a PCP.

How do I prove a PCP puts my group at a disadvantage?

You can use statistical evidence, surveys or common knowledge to show that the PCP disadvantages people who share your protected characteristic. In some cases, courts will take judicial notice of well-established facts, such as the childcare disparity, meaning women are more likely to have primary childcare responsibilities than men.

Can an employer justify a discriminatory PCP?

Yes. If an employer can show the PCP is a proportionate means of achieving a legitimate aim, the indirect discrimination will be justified and lawful. However, the employer bears the burden of proving this, and cost savings alone are not sufficient justification. The employer should also show there is no less discriminatory way to achieve the same aim.

What compensation can I claim for indirect discrimination?

Compensation for indirect discrimination can include financial losses (uncapped) and injury to feelings awards assessed using the Vento bands. For claims presented from 6 April 2025, the Vento bands range from £1,200 to £60,700, with higher awards possible in exceptional cases. However, if the discrimination was unintentional, the tribunal must first consider other remedies before making a compensation award.

What is the time limit for bringing a PCP discrimination claim?

You must bring a claim within three months minus one day from the date of the discriminatory act. For a continuing PCP, time runs from when the practice ends or when it was last applied to you. You must also go through Acas Early Conciliation before submitting your tribunal claim, which can extend the overall deadline.