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Disability discrimination: Can an expectation that an employee would work late amount to a PCP?

12 March 2018
Glass enclave reception area of a corporate building
In the case of United First Partners Research v Carreras the Court of Appeal has agreed with the Employment Appeal Tribunal ("EAT") and confirmed that an expectation that an employee will work late can amount to a provision, criterion or practice ("PCP") for the purpose of disability discrimination under the Equality Act 2010.
Background

Mr Carrerras was an analyst for a brokerage firm.  In July 2012 Mr Carreras had a serious bike accident and had to take several weeks off work.  When he returned to the office he struggled with dizziness, fatigue and headaches and he had difficulties concentrating.   As a result he was not able to work late into the night.  Previously he had worked from 8 or 9am to between 9 and 11pm.  


Upon his return Mr Carreras initially worked eight hour days.  This subsequently increased to 11 hour days.  Mr Carreras was put under increasing pressure to work longer hours, initially through open requests and culminating in an assumption that the long hours would be worked.  


On 14 February 2014 Mr Carreras objected via email to the long hours, due to the symptoms of his disability, in particular his tiredness.  Later that day he had a heated exchange with Mr Mardel (one of the owners of the business) and Mr Carreras was told that if he did not like it he could leave.  During the argument Mr Mardel accused Mr Carreras of continually criticising his colleagues and publically reprimanded him.  

Mr Carreras resigned and claimed constructive dismissal and a failure to make reasonable adjustments.  

Under the Equality Act 2010 employers are obliged to make reasonable adjustments when there is a PCP which puts a disabled person at a disadvantage compared to a non-disabled person.  The Equality and Human Rights Commission ("EHRC") Code provides guidance on PCPs encouraging a wide interpretation of the term including:  formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions.  The question in this case was whether the expectation that Mr Carreras would work long hours amounted to a PCP and so put the Respondent under a duty to make reasonable adjustments.  

With regard to the constructive dismissal, the Employment Tribunal had to consider whether there was a breach of contract by the Respondent which was the effective cause of Mr Carreras' resignation.  

The Employment Tribunal

The Employment Tribunal found that there was not a PCP and that, although there had been a breach of the implied duty of trust and confidence, Mr Carreras did not resign in response to the breach. (There was much evidence given as to other reasons why Mr Carreras resigned including the fact that his wife had taken a new job in America).  

The EAT

The EAT disagreed.  The EAT found that the phrase "provision, criterion or practice" in the Equality Act should be widely construed.  The Tribunal had focused too much on the fact that Mr Carreras had pleaded his case as a "requirement" to work late.  Although a "requirement" to work late might include some element of compulsion, it is not limited to this; an expectation or assumption placed upon an employee might well suffice.  The expectation that someone must work late can amount to a PCP.  The term "requirement" does not equate to coercion.

With regard to the constructive dismissal element of the claim the EAT found that the Tribunal should not have focused on whether the Respondent's breach had been the only reason for the resignation.  Instead, the Tribunal should have focused on whether the breach was a reason for the resignation; it did not have to be the sole reason.  On the evidence given, the breach was certainly a reason for the resignation.  

Court of Appeal

The Court of Appeal agreed with the EAT.  The Employment Tribunal had adopted too narrow an approach to the interpretation of the word "requirement".  It was sufficient that Mr Carreras felt pressured to work late.  An expectation that an employee would work late can amount to a PCP.

The Court of Appeal also largely endorsed the EAT's findings with regard to the constructive dismissal claim.  As such the Respondent's appeal was dismissed on both counts.

Comment

Although the EHRC Code has made it clear that PCPs should be construed widely for some time now, this case provides an illustration of just how far the courts will go.  Many businesses have a culture of long hours and there can be disadvantages for employees who are not able to comply, such as reduced bonuses and poorer career progression.  Employers must consider what reasonable adjustments they can make for their disabled employees who may be impacted by such disadvantages.  Could workloads be adjusted? Could employees take a break? Work from home?

Although there is no actual change in the law, this case provides a useful prompt for employers to consider what reasonable adjustments they make for their disabled workforce and the context within which the obligation arises.  

It is worth noting that the Court of Appeal confirmed that the evidence relating to Mr Carreras' plans to move to America would be relevant from a quantum perspective.

Further Reading