The Equality Act and identifying a PCP
The Employment Appeal Tribunal (the EAT) has held that an employee does not have to be forced to do something, in order for it to constitute a provision, criterion or practice (PCP) within the meaning of the Equality Act.
The Claimant in this case was seriously injured in a cycling accident and as a result was disabled. He said that it was a requirement of his Employer that he worked late but the Employment Tribunal (ET) hearing the case at first instance, simply dismissed his claim because they said that, whilst there was an assumption that he would work late, he was not coerced into doing so.
The Claimant appealed, saying that the ET’s reasoning was “an exercise in semantics”. The EAT agreed that the Tribunal at first instance’s approach had been an “overly technical and narrow approach”. It held that although a simple request cannot be a PCP, but that the Employer in this case had, on the facts, done more than merely request that the Claimant work late. In fact, there had been a clear expectation and an assumption that he would work late.
The case was remitted to the ET, to consider in light of the EAT’s findings.
This case sends a clear message to employers, navigating situations involving disabled employees. Employers really need to tread carefully in the way that they treat employees with disabilities. It is better all round, to deal with these matters properly in the first place, than to have to face the fallout of getting things wrong and, ultimately, to end up involved in an Employment Tribunal.