Great Expectations
Ian Machray explains how a culture of long hours can give rise to disability discrimination claims.
Under the Equality Act, an employer has a positive duty to make reasonable adjustments where a disabled employee is put at a substantial disadvantage by a provision, criterion or practice (PCP). An example of a PCP is an employer’s requirement that a position be worked on a full-time basis. This could be discriminatory for women who are more likely than men to work part-time due to childcare commitments. In a recent case the Court of Appeal considered whether expecting a disabled employee to work long hours is a PCP.
Mr Carreras was an analyst at an independent brokerage firm and worked long hours. He was injured in a serious cycling incident in 2012 and when he returned to work he experienced dizziness, fatigue and headaches. He worked no more than 8 hour days for the first 6 months. By 2013 his hours gradually increased and, despite finding this difficult, towards the end of 2013 an expectation began to develop that he would again work evenings. In February 2014 he objected to this and resigned following a dispute with his manager.
Mr Carreras bought claims against the employer including a failure to make reasonable adjustments. The claim was initially dismissed because the PCP he was relying on was a ‘requirement’ that he work late hours and the employer argued that he was asked, and not made, to work late. He appealed the decision.
The Employment Appeal Tribunal (EAT) found that he was under pressure to agree to work long hours and that this was capable of amounting to a PCP. The employer appealed the EAT decision on the basis that the issue must be decided by reference to the parties agreed understanding of ‘requirement’. The Court of Appeal dismissed this and agreed with the EAT that the use of the word ‘requirement’ was used too narrowly in this context; it was simply used to identify the PCP.
The case is a useful reminder to employers that the concept of a PCP will be widely construed in the context of the reasonable adjustments duty. Employers should communicate with disabled employees on their working arrangements and not apply blanket policies or assume that they will be able to return to working arrangements undertaken prior to disability. The employer could also proactively invite and consider any suggestions for adjustments from the employee.
