EAT finds expectation to work late is a PCP in disability discrimination law
Employers have a duty under the Equality Act 2010 to make reasonable adjustments to help disabled job applicants, employees and former employees. The duty can arise where a disabled person is placed at a substantial disadvantage by a ‘provision, criterion or practice’ (PCP) operating in the employer’s workplace.
In the recent case of Carreras v United First Partnership Research, the Employment Appeal Tribunal (EAT) had to decide whether an employer expecting a disabled employee to work long hours amounted to a PCP.
Carreras worked as an analyst at a brokerage firm from October 2011 until February 2014. He regularly worked from around 9.00 until 21.00.
In July 2012, he was involved in a bike accident. He took several weeks off work to recover but continued to have symptoms such as dizziness, fatigue and headaches on his return to work, and found it difficult to concentrate and work late into the evening. In the first six months after his return, he worked no more than eight hours a day. After that, he tended to work from 8.00 until 19.00. From October 2013, his employer began requesting that he work later, and this then progressed to an assumption that he would do so. Carreras felt he might lose his job, or at the very least his bonus, if he did not work late.
Eventually he objected to working late and was told if he didn’t like it, he could leave – which is what he did. He brought claims for constructive unfair dismissal and a failure to make reasonable adjustments. Carreras claimed that being required to work late constituted a PCP. The employer maintained that it had only asked Carreras to work late – it had not compelled him to do so.
An employment tribunal held that the employer progressing from making open requests to Carreras, to assuming he would work late once or twice a week, created an expectation that he would do so. The continuing effects of the injuries Carreras had sustained in the accident made him disabled under the Act, and he was placed at a disadvantage as a result of this in relation to the employer’s expectation. However, crucially, the tribunal decided that an expectation that he should work long hours did not constitute a requirement, and did not constitute a PCP.
The EAT disagreed, finding that an expectation could constitute a PCP. The tribunal had adopted too restrictive an approach on this and should have looked at the reality of the situation.
On the constructive unfair dismissal claim, the EAT held that the employer’s breach of contract only needed to constitute one of the reasons for Carrera’s resignation, not the sole reason. The tribunal had placed undue weight on the fact that he would have retracted his resignation if he had been asked to, and that he had gone to live with his wife in the US following his resignation. He had resigned in response to his employer’s breach of contract (the failure to make reasonable adjustments), so his constructive unfair dismissal claim succeeded.
Although Carreras did not bring an indirect discrimination claim, the EAT’s findings in relation to what can constitute a PCP will be relevant to these claims.
This case could create some tricky issues for businesses that operate a long-hours culture. The judgment is an acknowledgment that workplace culture, which involves a mixture of spoken and unspoken rules, can make employees feel obliged to work in a particular way, even when this is disadvantageous to their health. While the decision could certainly be seen as a positive step in improving the health and well-being of their staff and engendering a positive work-life balance, employers should consider carefully what impact the working environment they foster may have on certain categories of employee, for example, those with a disability or with parental responsibilities.
This becomes all the more difficult when employers are faced with employees who may feel pressurised to work long hours, despite there being no such expectation on the part of their employer for them to do so. Employers should ensure that communications with such employees, encouraging them not to over work, and offering support in terms of workload, are documented. A medical opinion may also be helpful in certain cases.
Story via – http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2016/06/30/why-employees-working-longer-hours-may-be-bad-news-for-employers.aspx