In this case, the EAT held that an expectation that a disabled employee would work long hours amounted to a provision, criterion or practice for the purposes of a claim of failure to make reasonable adjustments.
The facts
Mr Carreras was employed as an analyst for a brokerage firm. He suffered a serious bike accident, and when he returned to work, he was affected by physical symptoms, amounting to a disability, including difficulty with concentrating and working late in the evenings.
Before his accident, Mr Carreras had regularly worked 12 hours a day, or longer. For the first six months after he returned following his accident, he worked no more than eight hours a day. This increased to 11 hour days. He then requested to work later on occasions, and this led to requests being made of him, and then an expectation that he would work later than 9pm on a couple of evenings every week. He was not (the tribunal found) "forced" to work late, although there were commercial and political reasons why he should work late.
Mr Carreras formally objected to working late in the evenings and, after a heated exchange between Mr Carreras and one of the owners of the business, he walked out. He claimed constructive dismissal and a failure to make reasonable adjustments. This alert does not consider the constructive dismissal claim.
An employer is obliged to make reasonable adjustments when there is a provision, criterion or practice (PCP) which puts a disabled person at a substantial disadvantage compared with a non-disabled person. The employment tribunal decided that the obligation to make reasonable adjustments had not been triggered because the PCP which Mr Carreras had pleaded was a "requirement" to work long hours, and the evidence showed that, while there was an assumption or expectation that he would work late hours, it did not show that he was "required" to do so.
Mr Carreras successfully appealed. The EAT held that the employment tribunal had adopted too narrow or technical an approach to the PCP, and should have looked more broadly at the reality of the situation which was that Mr Carreras felt obliged to work late, and the expectation that he should do so could be considered to be a "requirement" and so amounted to a PCP. The obligation to make reasonable adjustments had therefore been triggered, and the case was remitted to the employment tribunal to consider whether there had been a failure to make reasonable adjustments.
What does this mean for employers?
This decision is not very surprising. The legislation and the supporting EHRC Code make it clear that a liberal rather than an overly technical or narrow approach should be adopted when it comes to identifying a PCP. However, it would be interesting to see whether the EAT would have decided that there was a PCP if the employer had not (as it had here) explicitly requested the long working hours, but the employee had simply felt compelled to work long hours because of the working hours culture.
Employers should bear in mind that PCPs are also relevant to indirect discrimination claims. For example, an expectation that employees should work late regularly, attend work functions in the evenings and work at weekends could have a disproportionate impact on women because of child care responsibilities. Employers who expect employees to work long hours should therefore be ready to objectively justify such an expectation.
