Expecting staff to work long hours can amount to a ‘provision, criterion or practice’

Employment Tribunal

Where a workplace ‘provision, criterion or practice’ (a ‘PCP’), puts a disabled worker at a disadvantage, the employer is obliged to make ‘reasonable adjustments’.

In United First Partners Research v Carreras, the question was whether an expectation that staff work long hours could amount to a ‘PCP’.

Background

Mr Carreras worked for United First, a brokerage firm, as an analyst. Due to the nature of his role, Mr Carreras worked very long hours, typically 12 hours a day. Nine months after starting his employment, he had a cycling accident and suffered serious injuries, and he had to take several weeks off work.

When he went back to work, he was still suffering a number of symptoms, so could not work the same hours as before. For the first six months, he worked a maximum of eight hours a day.

Soon, due to the demands of the role, Mr Carreras’ working hours started to creep up again, until eventually United First were asking him to work later in the evenings. Mr Carreras felt under pressure and was worried about the implications for his job, so he did not object to this. United First began to expect him to work longer hours and began to ask him more and more frequently to do so.

Mr Carreras found the long hours difficult, as he still felt dizziness and fatigue in the evenings. About 18 months after his accident, he resigned. He brought a claim for disability discrimination, based on a failure to make reasonable adjustments. He alleged that his physical and emotional symptoms following his accident amounted to a disability under the Equality Act. He claimed United First had required him to work in the evenings, which amounted to a ‘PCP’.

What was the outcome of the case?

The Employment Tribunal (ET) found that Mr Carreras was disabled, however it dismissed his disability discrimination claim. In relation to the alleged PCP, the ET found there had been no ’requirement’ that Mr Carreras work in the evenings; at most there had been an expectation that he would do so.

The Employment Appeal Tribunal (EAT) upheld Mr Carreras’ appeal. In the EAT’s view, the ET had looked at the PCP too narrowly. An expectation that Mr Carreras work in the evenings could amount to a PCP.

United First appealed to the Court of Appeal (CA). The CA agreed with the EAT. There was no express instruction or coercion by the employer, however it had expected Mr Carreras to work in the evenings, and that was made clear by a pattern of repeated requests, which created a pressure on Mr Carreras to agree. This expectation could be a PCP.

What should employers take from this case?

  • The courts will not be overly technical about what amounts to a PCP and can take a wide view.
  • In this case, the PCP was not based on something written down in a policy of the employer, which is often the first thing that springs to mind when thinking about a PCP.
  • Employers should consider the impact of their workplace ‘culture’ on employees. Placing expectations or assumptions on staff can amount to a PCP.
  • Where an employee returns to work after a period of illness and their symptoms may still impact on them at work, the employer should make sure it takes reasonable steps to ‘rehabilitate’ the employee back in to work. Depending on the circumstances, this could involve getting medical advice, which may identify possible adjustments.
  • Although not part of this case, in the context of long working hours, employers should also be mindful of their health and safety obligations, and their duties under the Working Time Regulations.