CA-2024-002185 - [2025] EWCA Civ 1049

By way of preliminary observation, section 19(1) of the 2010 Act provides that a person discriminates where it applies a PCP which is discriminatory. That may necessitate determining if the conduct complained of is a PCP. It will also involve consideration of whether the PCP is discriminatory which involves considering each of the four elements identified in section 19(2)(a) to (d). It is, often, helpful to divide the issues into whether the conduct amounts to a PCP, and then to consider, so far as necessary, each of the four elements in turn. But it is worthwhile to remember that the meaning of each individual part of section 19(1) and 19(2) falls to be ascertained not simply by looking at the individual words in isolation (e.g. provision, criterion or practice) but in context and having regard to the words in the remainder of the section (see the observations of Lord Hodge at paragraph 29 of his judgment in R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2022] AC 255).

In the present case, the section contemplates a provision, criterion or practice which is capable of being applied to persons. It must be something capable of putting certain persons at a disadvantage when compared with other persons. A PCP, therefore, is something that by its nature gives rise to differentiation between groups. That appears from the judgment of Simler LJ in Ishola. There, the Court was dealing with a one-off act, namely requiring a person to return to work before his grievances had been investigated. The question was whether that was a provision, criterion or practice which put the individual at a particular disadvantage for the purpose of section 20 of the 2010 Act and the duty to make reasonable adjustments in respect of a disabled person. Simler LJ noted that the phrase had the same meaning in section 19 and 20 of the 2010 Act. She had regard (as do I) to the relevant statutory code of practice issued by the Equality and Human Rights Commission. Simler LJ concluded that the words “provision, criterion or practice” were intended to be broad and overlapping and were not to be narrowly construed or unjustifiably limited in their application. At paragraphs 36 to 38, Simler LJ said this:

“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, where particular disadvantage is suffered by some and not others because of an employer's PCP. In both cases, the act of discrimination that must be justified is not the disadvantage which a claimant suffers (or adopting Mr Jones’ approach, the effect or impact) but the practice, process, rule (or other PCP) under, by or in consequence of which the disadvantageous act is done. 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 … that the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply.

37.

In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability-related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP.

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. It seems to me that “practice” here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or “practice” to have been applied to anyone else in fact. Something may be a practice or done “in practice” if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily.”

Turning then to the facts of the present case, I consider that the maintenance of a database on which information is stored is not, of itself, likely to be a PCP. The inclusion of information with a view to the management, organisation and subsequent use of that information is unlikely, of itself, to amount to a PCP. It may, in isolation, be seen as a “practice”. It may amount to a state of affairs. But it is not a practice or state of affairs that of itself differentiates between different groups of persons. If, therefore, the judge was entitled to regard that as the PCP in issue, then I would be minded to find that grounds 1 and 2 were not made out.

Ms Monaghan’s point, however, is that the PCP relied upon in argument below had two elements: the practice of operating a database for homeless applicants seeking a transfer and providing to some or all of those applicants unsuitable accommodation while they remain on the list. I have some doubt as to whether operating a database for homeless applicants seeking a transfer and providing unsuitable accommodation while on the database involves the application of a PCP. On analysis, it appears to describe a state of affairs, that is, it describes persons to whom a duty under section 193(2) is owed, but who are not currently being provided with suitable accommodation in breach of that duty, and whose details are kept on the database to facilitate the provision of suitable accommodation and compliance with the duty. The state of affairs describes a group of persons but is not a means of differentiating between people and deciding who will be subjected to particular treatment and who will not. For the purposes of this appeal, however, I will assume that the element of providing unsuitable accommodation to some or all of the people on the database is a practice within the meaning of section 19(1) of the 2010 Act and I will consider whether, assuming it is a PCP, it is discriminatory.