For many employees, putting in extra hours is just a fact of working life. Indeed, in certain roles and sectors there is an unwritten rule that employees will work well in excess of their basic contractual hours.
The Equality Act 2010 obliges employers to make reasonable adjustments when a provision, criterion or practice puts a disabled person at a substantial disadvantage compared with a non-disabled person. To amount to a provision, criterion or practice, something does not need to be a requirement or condition. Indeed, the Equality and Human Rights Commission’s Code of Practice (“EHRC Code”) states that provision, criterion or practice should be:
“construed widely so as to include…any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or conditions.”
In the following case, the key question the Court of Appeal were asked to consider was whether an expectation for a disabled employee to work long hours amounted to a provision, criterion or practice.
United First Partners Research v Carreras
Facts
Mr Carreras worked as an analyst for United First Partners Research between October 2011 and February 2014. Initially, he worked very long hours, typically from around 08.00 or 09.00 in the morning to around 21.00 or 23.00 in the evening.
In July 2012, Mr Carreras was involved in a cycling accident in which he was seriously injured. He returned to work within a few weeks of the accident but continued to experience symptoms of dizziness, fatigue, headaches and difficulties in concentrating. Consequently, he was not able to work the same hours as before.
For the first six months following his return, Mr Carreras worked a maximum of eight hours a day. After that he began to work longer hours, from 08.00 in the morning to around 19.00 in the evening.
From October 2013, Mr Carreras came under pressure to work even longer hours and requests were made for him to work later in the evenings and, when he agreed, there was an expectation that he would continue to do so on a more permanent basis.
On 14th February 2014, Mr Carreras sent an email objecting to working late in the evenings. Later that day, one of the owners of the business raised his voice to Mr Carreras, reprimanded him in front of his colleagues (saying that Mr Carreras continually criticised his colleagues) and told him that he could leave if he did not like it. Mr Carreras subsequently resigned and brought an Employment Tribunal (“ET”) claim alleging failure to make reasonable adjustments in relation to his hours of work.
The ET dismissed Mr Carreras’ claim on the basis that United First Partners Research had not imposed a provision, criterion or practice because Mr Carreras had never been “required” to work in the evenings: there had been an expectation at most that he would do so.
Mr Carreras appealed to the Employment Appeal Tribunal (“EAT”).
The EAT upheld Mr Carreras’ appeal on the basis that the ET had adopted an unduly narrow approach to the question whether he had been “required” to work long hours and that it should have found that the expectation that he would do so amounted to a provision, criterion or practice.
United First Partners Research appealed to the Court of Appeal (“CA”).
Decision
The CA dismissed the appeal. It decided that the EAT was right to hold that the ET’s approach was too narrow. It found that the ET’s findings of fact established the pleaded provision, criterion or practice, namely that Mr Carreras was expected to work long hours and this created pressure on him to do so.
Comment
This case reflects the reality that workplace culture, involving a mixture of spoken and unspoken rules, can make employees feel under pressure to work in a particular way (including by working excessively long hours), even where it adversely affects their health.
The wording of the Equality Act 2010 and EHRC Code make it clear that a provision, criterion or practice is a broad concept and, to amount to a provision, criterion or practice, something does not have to be a “requirement” in the narrow sense. Nevertheless, it is significant to have a CA decision acknowledging that an employer’s expectation can amount to a provision, criterion or practice.
This case should not be taken to suggest that employers cannot expect employees to work long hours. It does, however, indicate that such an expectation can amount to a provision, criterion or practice. Where such a provision, criterion or practice puts a disabled employee at a substantial disadvantage it could give rise to a disability discrimination claim.
There are many sound reasons why employers should, where possible, avoid the need to have employees work excessively long hours (including health and safety and compliance with the Working Time Regulations 1998) and this case highlights this.
In light of this decision, we would encourage employers to review their working arrangements (including any “long hours culture”) and consider whether they could put a disabled employee at a substantial disadvantage. Where an employer has concerns in this regard, it may be appropriate to seek a medical report concerning the employee.
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