PCP or Silent Warning?
Welcome to my first blog dedicated to my employment tribunal journey.
If you would like to watch the vlog edition of this article, you can head over to my You Tube channel just here.
First lets get the introductions out of the way!
For those of you who are new to my website, my name is Lisa and I successfully represented myself as a litigant in person throughout an Employment Tribunal process against my former employer in 2022.
One of the main motivations behind starting my own website was to be able to share my experience first hand to try and help those currently navigating the treacherous path of an Employment Tribunal.
I remember painstakingly combing the internet in the beginning for some glimmer of light in the vast darkness that I found myself in, just to find real stories of those who had been in the same position as me and had actually come through the other side!
Since receiving a successful judgement in my claim in January 2022, I have reached out to various outlets to share my story but found that many were unwilling to participate.
I’m sure that we have all seen the stories hitting the headlines regarding the larger companies like P&O and rightly so, those individuals have just as much right to have their story heard, but what about the others?
In my story, I was just one person but cumulatively along with the other hundreds, if not thousands of individuals that are badly treated by their employer, the numbers really start to stack up.
In this first instalment I would like to highlight something that happened before my redundancy process that resulted in the loss of my employment.
The subject of this article actually crept up on me and I didn’t even realise until it was too late that it could be relevant.
As I have now found out the hard way, where employment law is concerned, forewarned is certainly forearmed so its just one of the many points that I want to highlight during the course of my journey.
I had started working for my former employer in 2010 initially as a full time member of staff. The company were the largest payroll and audit provider in the UK for construction at the time.
I primarily worked in the payroll department and as I progressed, I also helped out in the sales and marketing department.
I had worked for the company for around 2 years when I was approached by a member of the management team and was advised that they were splitting the main processing office into two sections, namely administration and payroll.
I was asked if I would like to head up the new administration section as team leader, which I accepted.
I settled into my new role and was lucky to be working with some great people as part of my team.
Through the course of my time as team leader I had recruited and trained new staff and really enjoyed my role.
I felt that I had a good relationship with my employers and as we lived in a small town they were a well known family business.
I continued my job as administration team leader until early 2015 when I took maternity leave to have our first baby.
Once I returned back to the office in the following March, It was agreed that I could work part time as a processor in the payroll section where I continued to work my 16 hours per week over a Monday and Tuesday until I went on maternity leave in late October 2017 to have our second child.
Upon my return, I continued to work the same hours and was placed back into the administration team. I still enjoyed my job role and at that time I can honestly say that I had no concerns about my work life whatsoever.
Fast forward to March 2020 and the COVID pandemic hit the UK.
The country was preparing to go into its first lock down and like many others, my employer wanted to get a plan in place to allow them to continue trading and offering their services to clients.
Because we were based in construction and the industry continued to work, we were able to continue trading and providing a service to those also in that sector
Looking back with the benefit of hindsight, the 16th of March 2020 was when I feel that my journey really started.
It was a Monday morning and an E-mail dropped into my inbox titled ‘High Importance’.
Upon opening, it said that there was an attached document which all members of staff needed to read and understand, in that same E-Mail we were advised that if we had any queries about the attached document, we must raise it with an immediate superior.
Before I go any further I would like to make an important point.
The E-Mail and document in question had been sent to ALL members of staff within the company at the time including the office where I was based, the Manchester office, the Guernsey office along with the sales team and audit team.
Everybody had received the same email. The document within it outlined what the company were planning to do in order to keep the business running through lock down.
One of the key points of the plan was that he management team had split all employees into one of two groups.
Group one was the ‘Key Worker’ group. All of the individuals included within it were the people who would be offered the choice to work at home and they would be supplied with a computer kit to do so.
This would enable them to continue their role within the business and still earn a full salary, the only real difference would be that instead of coming into the office, they would be working remotely from home.
The ‘Key Worker’ group also had something else extremely relevant in common, it consisted of 100% of only full time workers.
Although they were a mix of male and female employees and worked in various departments, primarily everybody within that group who would be supplied with a computer to work at home and earn full salary were all full time members of staff.
Obviously I wasn’t included in the ‘Key Worker’ group because I was a part time member of staff.
So lets move onto ‘Group Two’ They were the people who wouldn’t be given the choice to work at home nor given the opportunity of a home working kit to allow us to perform our role and therefore receive a full salary.
It was indicated that those in group two would be sent home and remain there until it was safe for them to return to the office.
Those, including myself, who were in group two also had something extremely relevant in common in that it consisted of 100% of the part time staff in the company at that time, all of which were women and all of which had young children.
Group two also included the four individuals who had less than two years service.
To summarise, all part time workers and those with less than two years of service with the company at the time would not be provided with a computer kit so would not be able to work from home and earn their full salary.
Upon reading the E-Mail for the first time, the first thing that I did was go to my team leader and and ask why I had been placed in group two.
At that time, my partner was self employed and was already feeling the effects of Covid in the maintenance sector. I pointed out that he was going to be at home and my wage was going to be our only source of regular income.
I could work and I wanted to work, I didn’t just want to sit at home doing nothing.
I asked if I could be moved into the key worker group but she advised that the general manager was on holiday skiing in France at that current time but when he returned she would speak with him and ask if it would be an option.
A couple of weeks later, the UK had gone into lock down and the Covid plan was in force.
Those in the key worker group had been given the choice to come into the office or work from home, which understandably many of them did. Those like myself, in group two were now at home as per the plan and over the course of the next couple of weeks I had several conversations with my general manager by telephone and messages reiterating the fact that I could work, I wanted to work and if a computer kit was available I would have it.
He advised hat the kits had only been ordered for those included in the key worker group and as i wasn’t included within that group, there was no equipment for me.
Shortly afterwards, I received my monthly pay statement saw that my salary had been reduced and I had been noted down as sick.
I raised the issue with my general manager and asked why we had not been placed on the Furlough scheme, he told me that we were not going to be furloughed and that the company had devised its own sick pay scheme to pay the people who are at home.
In my case, it was less than my normal salary for 16 hours per week and I think for some in group two, it was substantially less than their normal salary.
In May, I received an E-Mail advising that we would continue this arrangement until we were instructed otherwise and could return to the office.
Whilst at home through lock down, I had my annual appraisal by video call with my team leader and general manager which was all really positive and there was absolutely nothing mentioned that gave me any cause for concern, I was told that they would keep in touch and let me know when they needed me.
On the 10th of June, I received a call from my general manager. He began by saying that due to the COVID pandemic, the company were not in the greatest position. They were restructuring and had decided to make redundancies and that would potentially apply to me.
More about that to come in my next instalment but for now, I really want to go back to the E-mail that was sent to me on the 16th of March.
After been made redundant, there were a lot of things that just didn’t add up for me. One of which was the fact that I had found out on the grapevine that not one person from the key worker group had lost their employment during the supposed company restructure and redundancy process, Yet five out of the 10 people in group two, who were all part time workers like myself or had less than two years service, had lost their jobs.
I started to think that maybe I should have pursued the E-Mailed document that was sent out to us because seemingly, group two was not a good place to be!
It all seemed a little bit more than coincidence to me. Nobody in the key worker group had lost their jobs, yet half of the people in group two had.
It was really only at that point that I started researching a little more into documents and procedures that employees are asked to follow and came across something called a PCP.
So the first obvious question, what is a PCP?
Well, a PCP is a provision criterion or practice that applies to all but puts certain individuals at a detriment or disadvantage who share a protected characteristic. In my case, the E-mail on the 16th March 2020 applied to all staff but had a much more detrimental effect on the part time workers and those with less than two years service, than it did for the full time workers.
So when would you expect to see a PCP? good question, a PCP can be used in anything from a job advertisement to a company contract or a company handbook. They can be verbal or written and could even be pinned on a notice board within the workplace!
They can also take various different forms, say for example that you have started a new job and you question something that doesn’t sit quite right with you only to be told “Well, we’ve always done it like that” or “Well, that’s what the management said that we have to do”
Although that may very well be the case, if a policy, procedure or practice discriminates against somebody, then it needs to be raised because maybe some employees genuinely don’t realise that they are discriminating against people, but that really is no excuse.
You would think that surely a PCP would be really obvious, right?
Well, In hindsight it would have been but at the time, I had no reason to think that my former employer was going to negate on their duty of care towards me and potentially use a PCP as a way of edging people towards the door very discreetly. I had no reason to suspect anything at the time.
I questioned the document to an extent but more because I thought it was a little unfair on the full time workers because they were having to work and part time workers didn’t. At the time I was given a final answer by my general manager and I let it lie.
The thing with a PCP is that, as we have already touched upon, it can be a really sneaky little dude, creeping in without you even knowing about it. Just because something doesn’t directly discriminate against you or anybody else. It can indirectly discriminate against a group of people or an individual which is still a huge cause for concern and also could be cause for a claim through an employment tribunal.
A PCP can also sneak into things like a job advertisement which applies to all because anybody can apply for the job but somewhere in the description it states that an applicant must have at least 5 years of experience before applying, Instantly this screams age discrimination because obviously, anybody younger or depending on different individuals circumstances, they may not have had the opportunity to gain five years experience.
Straightaway, those people are at a disadvantage or detriment because they are not going to be considered for that job.
Another instance could be that you have been working in a job role for a while, and you work part time. All of a sudden it comes it filters down the ranks or you get sent an email or perhaps a notice is pinned up on a notice board to say that job roles within that department will no longer be suitable for part time employees. Even if you are not made redundant, this could be deemed as indirect sex discrimination because statistically, the majority of part time workers are women.
Even if a PCP is put out there as a possibility or a plan for the future and isn’t actually in force right now, If you are at all unsure or unhappy about the content, it would be my advice to speak up and ask the question and if your not happy with the answer, take it higher within the company or speak with a recognised body like ACAS or Citizens Advice.
If the worse should happen and you feel that you have been unfairly treated because of a PCP, in order to raise a claim, there are certain elements that you need to consider.
Firstly, you need to have a comparator.
A comparator is somebody else to whom the PCP applies, but who doesn’t share your protected characteristic so is not put at a disadvantage or detriment because of it.
To give you an example, in my case, a comparator would have been a member of staff in the same department as myself who worked full time or a male counterpart within another department who worked for the company that had children like myself.
In my case, either one of those comparators were given the option to continue working and earning a full time salary, where as because I was part time and had children. I wasn’t afforded that option.
Sometimes, if you are a sole employee, or if you do a role within the business that nobody else performs, you can use a hypothetical comparator, there is information online which goes into a little more detail like this article by the Citizens Advice Beaureu.
Another important factor to take into consideration before pursuing a claim based on a PCP, is the question can it be justified?
Well, astonishingly even though it discriminates against people the answer is Yes, it actually can.
If you raise a discrimination claim incorparating or based on the issue of a PCP, your employer or former employer will have to prove that that it was put in place to achieve a legitimate aim for the business.
They would have to prove to the Employment Tribunal that although they may not have realised at the time, or although it’s been brought to their attention since, that the PCP may discriminate against an individual or a group of individuals who share a protected characteristic, the benefit outweighed the negative.
To begin to defend a discrimination claim surrounding a PCP an employer would have to demonstrate that they had explored all other reasonable avenues before deciding on the PCP contents. They could potentially use reasons based around health and safety requirements of the business, economical needs of the business or financial need of the business to defend their decision and demonstrate that they basically had no choice but to issue or enforce the PCP in question.
The employer will have to provide evidence to prove that the PCP was justified, just as you would have to provide evidence to the contrary.
As with any claim through an employment tribunal, there are many grey areas and loop holes for employers to hide inside of and navigating your way through them can be difficult.
I have put together a short slide with the key points that I have discussed about PCPs which you can find on my You Tube channel just here.
The slide also includes my actual reasons which I was asked to provide in a case management order as to why I felt that the PCP in my case was relevant to my claim, I understand that setting out reasons is pretty standard in a discrimination claim.
Looking back now it’s really not that great I was at the beginning of the process and at that point, I really didn’t have very much knowledge surrounding employment law but its really just so that you have a rough idea on what you are going to be expected to provide.
Since receiving my judgement, I have devised an Employment Tribunal Journal & Organiser to try and offer a small amount of help to those who are currently experiencing the nightmare!
In my next article, I will be talking a little more in depth about yet another procedure that cropped up at the very beginning of my journey relating to a protected conversation.
To anyone reading this who is experiencing the lows and more lows of an employment tribunal, my partner said something to me in the midst of my journey which helped me immensely and today it may just be what you need to hear. It goes like this,
“In order to appreciate the true beauty of a rainbow, we must first endure a little rain”
I hope that very soon, the dark clouds will lift for you and the first glimpse of your rainbow isn’t too far away.
Stay strong, for each and every one of us are true warriors, You got this!
To read the judgements both with full written reasons of both my prelimanary hearing and my final hearing, you can find it on the gov.uk website here.
You can find my webinar with Valla UK Here.
You can find my story featured on the Greater Manchester Law Centre website here.