Case update (2): Disability discrimination – long working hours

Summary:  Can an expectation that an employee work long hours amount to a provision, criterion or practice which requires reasonable adjustments for a disabled employee?

Yes, says the Court of Appeal in United First Partners Research v Carreras available here.

Background: an employer is obliged to make reasonable adjustments where there is a provision, criterion or practice (PCP) which puts a disabled person at a substantial disadvantage compared with a non-disabled person.

Facts:  The employee, Mr Carreras was employed as an analyst by United First Partners Research, a brokerage firm. The employee suffered a serious bike accident and was affected by physical symptoms which amounted to a disability.  These symptoms included difficulty with concentrating and working late in the evenings.

The employee had been used to regularly working 12 hours per day or longer before his accident. However, during the first six months back at work after his accident he worked no more than eight hours per day. This later increased to 11 hour days. The employee then began to request late working, which led to requests being made of him and eventually an assumption that he would work late one or two nights per week. The employer began asking him which nights he would be working late rather than asking whether he was prepared to work any at all.

The employee eventually informed the employer that he was formally objecting to working late because of his tiredness. During a heated exchange with one of the owners of the business, he was informed that if he did not like it he could leave. The employee resigned and brought claims of disability discrimination (failure to make reasonable adjustments) and constructive dismissal.

The Tribunal decided that the obligation to make reasonable adjustments had not been triggered. The employee had pleaded that the PCP was a “requirement” to work long hours, and the evidence showed that, while there was an assumption or expectation that he would work late hours, it did not show that he was “required” to do so.

The employee appealed.  The EAT and subsequently the Court of Appeal, upheld his appeal. The EAT held, and the Court of Appeal agreed, that the Tribunal had adopted too narrow or technical an approach to the term “required”. Although a requirement might normally be taken to imply some compulsion, it may well be enough for an expectation or assumption placed on an employee to amount to a PCP.

The EAT held that an expectation to work long hours could amount to a PCP and a PCP should be interpreted widely to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions.

The Court of Appeal agreed that “required” was not equivalent to “coerced”. The Court of Appeal held that “requirement” does not necessarily carry a connotation of coercion, and the requirement can simply be a strong form of “request”.

Implications:  The case highlights that employers should be aware of workplace cultures that make employees feel obliged to work in a particular way, even where there is no express “requirement” that they do so.

Employers should be aware of the risk that asking an employee to work late may be a PCP, even if they are not actually forced to do so, and that it may be a reasonable adjustment to excuse the employee from working long hours.

While the disability discrimination legislation in the Equal Pay Act 2010, and the EHRC Code, make clear that there is no need for the employee to show a “requirement” in the narrow sense, it is helpful to have a Court of Appeal decision to confirm and illustrate this.