Various studies have found that British employees work some of the longest hours in Europe, but what happens when that long hours culture impacts adversely on employees with a disability? Can an employer’s expectation that a disabled employee works over and above their contracted hours constitute a “provision, criterion or practice” in respect of which the employer may then have to make reasonable adjustments?

Facts

Mr Carreras was a high performing analyst at a brokerage firm and prior to July 2012 he regularly worked long days, usually starting between 8 and 9am and not finishing until after 9pm and sometimes as late as 11pm. He had a serious cycling accident in July 2012 in which he sustained severe injuries. When he returned to work a few weeks later he suffered with a number of ongoing physical symptoms including dizziness, fatigue and headaches, difficulties concentrating and focusing and difficulties working in the evenings. It was found he was a disabled person under the Equality Act.

On his return to work Mr Carreras initially worked eight hours a day. However, his working hours soon started to creep upwards and within six months he was working for up to 11 hours a day. He then started to receive requests from his employer to work even later into the evening, and because he did so in response to those requests on a number of occasions, his employer started to assume that he would work late as a matter of course. Mr Carreras’ evidence was that he felt pressured and was concerned that if he did not work late he might be made redundant or lose his bonus.

Mr Carreras formally objected to his working hours in February 2014 and, in a heated exchange, his employer reprimanded him in front of his colleagues and told him that if he did not like it he could leave, following which Mr Carreras resigned and brought a claim for unfair constructive dismissal and disability discrimination.

In support of his claim for disability discrimination, Mr Carreras claimed that his employer had failed to make reasonable adjustments to his long working hours to take account of his disability. However, that claim did not succeed at the Employment Tribunal. It was found that as there was no “requirement” but only an “expectation” that he work long hours. He had not been disadvantaged by any provision, criterion or practice (“PCP”) implemented by his employer and so his claim was not made out.

EAT decision

The EAT did not agree with the Tribunal’s approach to identifying a PCP, which it found too narrow. It said that a wide and liberal interpretation should be given to what a PCP is, rather than an overly technical approach. It also gave a wider meaning to the word “requirement”, noting that although Mr Carreras could not be forced to work extra hours, the expectation or assumption could lead to a level of compulsion to work those hours. In reality, the company had imposed a PCP that Mr Carreras work long hours which put him at a disadvantage because of his disability and so was under a duty to take reasonable steps to avoid that disadvantage.

Comment

The EAT in this case was alive to ‘real world factors’ which may result in employees feeling obliged to work in a certain way even if this is detrimental to their health. These could be career or financial interests or particular political or commercial factors in a workplace. It was also made plain in this judgment that the approach taken to identifying a PCP should not be overly technical, thus making it easier for a disabled employee to establish a PCP and thus invoke an employer’s requirement to make adjustments.

It is therefore important for employers to be aware of the culture and any unwritten rules which operate in their workplace. An expectation that people work long hours or from home on the weekends or check their emails on handheld devices when not in the office, for example, may well be considered to be a PCP even if employees have not been explicitly instructed to work in that way. Employers should be alive to the possibility that such expectations may disadvantage disabled employees and where that is the case, reasonable adjustments must be made.

Carreras v United First Partnership Research [2016] UKEAT/0266/15