Long Working Hours - What Constitutes Discrimination?
In a recent case, the Court of Appeal upheld a decision of the Employment Appeal Tribunal (EAT) that an expectation for a disabled employee to work long hours amounted to...
... a provision criterion or practice (PCP) for the purposes of a disability discrimination claim based on a failure to make reasonable adjustments.
The Duty to Make Reasonable Adjustments
Under the Equality Act 2010, employers have a duty to make reasonable adjustments when a disabled employee is placed at a substantial disadvantage compared with a non-disabled person as a result of a PCP. In discrimination cases, a PCP is construed widely to include formal and informal practices, policies and arrangements.
United First Partners Research v Carreras
Mr Carreras was employed as an analyst for United First Partners Research, a firm of brokers. He typically worked from around 8 or 9am until between 9 and 11pm.
In July 2012, Mr Carreras was involved in a bicycle accident which left him with serious physical and emotional injuries, including dizziness, fatigue and headaches. He also experienced difficulty concentrating. The tribunal subsequently determined that this amounted to a disability under the Equality Act 2010.
As a result of his symptoms, on his return to work Mr Carreras began to leave the office between 6.30pm and 7pm each day. After a few months, his line manager began to request that he work later in the evenings and when he agreed, this became an expectation that he would so. Mr Carreras subsequently objected to working late in the evenings. His line manager in response reprimanded him in front of his colleagues and told him that if he didn't like it he could leave. As a result, Mr Carreras resigned and brought claims of constructive unfair dismissal and failure to make reasonable adjustments.
The Decision
Mr Carreras' claims were unsuccessful at first instance and this case went all the way to the Court of Appeal, which upheld the EAT's decision that an expectation on an employee to work late amounted to a PCP.
Both the EAT and Court of Appeal found that the tribunal had adopted too narrow an approach to the PCP. It had focussed too greatly on Mr Carreras's pleaded case that the expectation to work late was a 'requirement' and had therefore looked for a requirement in the narrowest sense. In reality, Mr Carreras felt he had to work late due to a series of requests which then became an expectation by his employer, and this amounted to a PCP.
A tribunal will now need to consider the nature and effect of the disadvantage suffered by Mr Carreras as a result of the PCP and to address the question of reasonable adjustments.
Best Practice
- The ECHR Statutory Code of practice states that the phrase 'PCP' 'should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-odd decisions and actions.'
- The decision in this case highlights that informal or unwritten policies can constitute a PCP for the purposes of establishing a claim for failure to make reasonable adjustments.
- Employers should be wary of the potential risks of discrimination where a culture of long hours in the office exists and should take care to ensure that disabled employees are not pressured to conform where this could place them at a substantial disadvantage to their colleagues.