In the case of Carreras v United First Partners Research (United), an employer’s expectation that an employee work longer hours was found to be a provision, criterion or practice (PCP) for the purposes of a disability discrimination/reasonable adjustments claim.
Under the Equality Act 2010, an employer is required to make reasonable adjustments when there is a PCP which puts a disabled person at a substantial disadvantage compared with a non-disabled person.
Mr Carreras was employed as an analyst for United, a brokerage firm. In July 2012, he suffered a serious accident and was affected by physical symptoms from the accident, namely dizziness, fatigue, headaches, difficulty with concentrating and working late in the evenings. Prior to the accident, Mr Carreras regularly worked long hours, typically from 9am to 9pm.
Following his return to work, for the first 6 months Mr Carreras worked no more than 8 hours a day. Thereafter, until the end of 2013, he tended to work from 8am to 7pm. From October 2013, he came under pressure to work longer hours and felt that he might be made redundant or would miss out on his bonus if he refused to work such late hours.
In February 2014, Mr Carreras objected to being asked to work late and following a dispute with the one of the owners of the business, when he was openly told (in front of other colleagues) that if he did not like the long hours “he could leave”, Mr Carreras resigned from his employment. Mr Carreras ultimately won a constructive dismissal claim as a result of the owner’s conduct.
However, Mr Carreras also brought a claim for failure to make reasonable adjustments, which required to him to show the application of PCP, and the question arose as to whether this applied to working longer hours. The issue revolved around the extent to which that late working was a requirement, and how far it was purely voluntary.
In the Employment Tribunal, Mr Carreras failed because he had pleaded that he had been “required” to work long hours and the evidence did not support this.
However, on appeal in the Employment Appeal Tribunal, the judge found that while a “requirement” might normally be taken to imply some element of compulsion, an expectation or assumption placed upon an employee by the employer may well suffice.
The court went on to find that United’s expectation that he would work long hours (initially communicated as a request that he do so and later based on an assumption that he would do so) was enough to amount to a PCP.
The Court found that United should have made it clear to Mr Carreras that he need not work long hours.
Mr Carreras was never under actual threat by United if he did not do the hours, he had done them out of genuine self-interest in terms of job security, and United had only assumed that he would do the hours because he had done them without complaint in the past.
Whilst workplace cultures (including unwritten rules), can make employees feel obliged to work in a particular way, even if it is disadvantageous to their health, employers should be mindful of assuming their employees will work longer hours, where they have not made a complaint about such hours in the past.
A workable approach is to ensure that employees, including those who have returned to work following an injury/sickness are managed sensibly from a working hours perspective. Before making any assumptions, employers should hold regular meetings with their employees to determine whether they are happy to work long hours.
If you have any questions arising from this article or would like further information on discrimination/reasonable adjustment claims, please get in touch with a member of our Employment Team.