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Expectation to Work Late Constitutes Provision, Criterion or Practice for Discrimination Purposes - Healthcare

on Friday, 10 June 2016.

Evidence suggests that GP workload is increasing and this could lead to longer working hours. But when does a choice to work late become an expectation?

And could an expectation amongst Partners that colleagues will work late lead a Practice into potentially risky discrimination territory? A recent case law suggests it could - in certain circumstances.

The Facts

In Carreras v United First Partners Research, Mr Carreras was severely injured in a road accident and had to take time off work. Upon his return to work, he found it difficult to work the long hours he had regularly worked prior to the accident.

Over time, Mr Carreras began to feel under pressure to work late again. Initially, he was asked to stay late, and eventually it was assumed that he would work late on one or two nights per week.

Mr Carreras objected to working late because of his tiredness and continuing effects of the accident. Following an altercation with his manager, Mr Carreras resigned from his post. He subsequently brought a claim for constructive dismissal and disability discrimination, arguing that the ''requirement'' to work late amounted to a PCP, in respect of which his employer was obliged to make reasonable adjustments.

The Employment Tribunal (ET) accepted that Mr Carreras was disabled for equality law purposes. However, it concluded that, in the absence of an express requirement (as opposed to a mere expectation) that he would work late, there was no provision, criterion or practice (PCP).  The claim failed on this basis and Mr Carreras successfully appealed to the Employment Appeal Tribunal (EAT).

The EAT's Decision

The EAT allowed the appeal, applying a liberal approach to the definition of a PCP. It held that an expectation or assumption could be sufficient to establish a PCP. On this basis, the ET's approach had been too narrow.

The claim has been remitted to tribunal to consider the question of reasonable adjustments.

Best Practice

Employers are under a duty to make reasonable adjustments where a PCP puts a disabled employee at a substantial disadvantage in comparison with employees who are not disabled.

There is no exhaustive list as to what amounts to a PCP but, as demonstrated by this case, the term can be construed widely. Therefore, employers should ensure that they listen to employees' concerns, obtain medical evidence where necessary, and adopt an approach which is as flexible as possible to reasonable adjustments.

For more information, please contact Jessica Scott-Dye in our Employment Law team on 0117 314 5652.