Can a non-obligatory requirement for employees to work longer hours amount to a provision, criterion or practice for the purposes of indirect disability discrimination?
Yes, held the Employment Appeal Tribunal (EAT) in Carreras v United First Partnership Research.
Carreras v United First Partnership Research
Background
Under the Equality Act 2010, employees are protected from being discriminated against on the grounds of a disability. Employers have a duty to make reasonable adjustments when there is a provision, criterion or practice which puts a disabled person at a substantial disadvantage compared with a non-disabled person.
Facts of the case
Mr Carreras was employed as an analyst by United First Partnership Research (United) from October 2011 to February 2014. In 2012, he had a cycling accident that resulted in him suffering serious injuries which constituted a disability for the purposes of the Equality Act 2010.
Mr Carreras returned to work after several weeks off but he continued to experience dizziness, fatigue and headaches and had difficulty in concentrating and working late in the evenings. Prior to the accident, Mr Carreras had regularly worked long hours from 9am to 9pm.
During the first 6 months back at work after the accident, Mr Carreras worked no more than 8 hours a day. Thereafter, until the end of 2013, he worked from 8am to 7pm. From October 2013, Mr Carreras was put under pressure to work longer hours. Initially, United only requested that he worked late. However, over time it became an assumption that he would work late and Mr Carreras felt that if he did not comply with this then he would lose his bonus or his job.
In February 2014 Mr Carreras emailed his boss explaining that he could not work late in the evenings due to tiredness. He was told that if he did not like it, he could leave. His boss reprimanded him in front of his other colleagues, and accused him of continually criticising his colleagues. Mr Carreras left the office due to this abusive behaviour and returned 2 hours later to collect his belongings. He informed HR that he was resigning and confirmed this in writing.
Mr Carreras sent a further email to United setting out his reasons for resigning. Prior to his heated exchange with his boss, Mr Carreras contended that there had been other previous matters that amounted to him being constructively dismissed.
Mr Carreras brought proceedings in the Employment Tribunal for unfair constructive dismissal and disability discrimination, contending that it was a requirement of his job that he work late and that United had failed to make reasonable adjustments owing to his disability in relation to this requirement.
Employment Tribunal decision
The Employment Tribunal dismissed Mr Carreras claim, ruling that United had not failed to make reasonable adjustments as the provision, criterion or practice (the requirement to work long hours) was not made out. The Tribunal held that, although there was an assumption that he would work late, there was no coercion by United for him to do this.
The Tribunal also dismissed Mr Carrera’s constructive dismissal claim, finding that the conduct of United did give rise to a claim for constructive dismissal, but that Mr Carreras did not resign in response to this.
Mr Carreras appealed the decision to the EAT.
EAT decision
The EAT reviewed the approach the Employment Tribunal had adopted in deciding that Mr Carreras had not been placed at a disadvantage as a result of being required to stay late, and concluded that the Tribunal had adopted an ‘overly technical and narrow’ approach.
It resolved that the Tribunal had attached too much weight to the fact that Mr Carreras referred to the long hours as a ‘requirement’ in his pleadings, and subsequently had failed to look at the reality of the situation. The reality of the situation was that Mr Carreras felt obliged to work late.
The EAT held that although a simple request to work late cannot be a provision, criterion or practice for the purposes of indirect discrimination, United had done more than request that Mr Carreras work late. There had been an assumption and an expectation that he would do so.
The EAT found that the original Tribunal’s approach was also flawed in relation to the constructive dismissal claim.
Comment
Whilst it is not clear whether the outcome of this case would have been different had no initial request to work late been made by the company, the case is a useful reminder that a broad view will be taken when deciding whether a provision, criterion or practice applies and whether an employer has caused the disabled employee any disadvantage by virtue of his disability.
In the ‘long hours culture’ that we live in, it is particularly important for employers to make it clear that a request to work long hours is a request, and not a demand, and they should be mindful of assuming that employees will always work longer hours when they have done so in the past.
As a matter of best practice, employers should ensure that employees returning to work through a phased return or who have a disability are carefully managed with regard to working hours. Employers would be well advised to regularly meet with any such employees and discuss whether they are happy to increase their hours..
For more employment law advice or to comment on this article, contact us to speak to a member of our employment law team.