The case of Carreras v United First Partners Research (UKEAT/0266/15) addresses the question of whether an employer's expectation that an employee work long hours was a provision, criterion or practice for the purposes of a reasonable adjustments claim.
An employer has a duty to make reasonable adjustments where it operates a 'provision criterion or practice' (a PCP) that puts a disabled employee at a substantial disadvantage compared to non-disabled employees. One option for an employer when faced with a reasonable adjustments claim will be to try to persuade the employment tribunal (ET) that it has not applied a PCP.
Mr Carreras was a successful analyst working for United First Partners Research (UFPR), an independent brokerage and research firm. Initially, he worked long hours (often at least 12 hours a day) and late into the evening and appears to have been satisfied with this state of affairs. However, in July 2012, he had a serious road accident while riding a bike. On his return to work he experienced dizziness, fatigue and headaches, had difficulty concentrating and found it difficult to work in the evenings.
For the first six months following his return to work he worked no more than eight hours a day. However, he then began working from 8am until 6.30 to 7pm until the end of 2013. From October 2013 he initially made some requests to work late but UFPR quickly got to the point where it assumed that he would work late and just asked him which evenings he would be working each week.
In February 2014, Mr Carreras objected to being asked to work late and, following a heated dispute over this, resigned from his employment. He subsequently brought claims for constructive unfair dismissal and a failure to make reasonable adjustments.
Employment tribunal decision
We will focus on the reasonable adjustments decision but an ET dismissed both of Mr Carreras's claims. In relation to the reasonable adjustments claim, the PCP he was relying on was a "requirement" that he work late hours. The ET found that he was not required to do so, although UFPR had developed an expectation that he would work late hours. Because the PCP Mr Carreras was relying on as a "requirement" was not made out, his reasonable adjustments claim failed.
Employment Appeal Tribunal decision
Mr Carreras appealed and the Employment Appeal Tribunal (EAT) overturned the ET's decision. It accepted an argument made by Mr Carreras that the ET had taken an overly technical or narrow approach. The EAT accepted that "requirement" could be broad enough to cover an "expectation or assumption" that an employee would work long hours, particularly as there was some suggestion that Mr Carreras might have felt it was in his interests to work late for career progression reasons.
The EAT felt that the ET should have taken 'a real world view' of the situation and that it was clear that, rather than request that Mr Carreras work long hours, UFPR had assumed he would: that was enough to be a requirement and amount to a PCP.
However, the EAT did not feel able to decide the case on the findings of fact made by the ET and therefore remitted the case for the same ET to decide the nature and effect of the disadvantage caused by the PCP and what, if any, reasonable adjustments should have been made.
Looking at the ET's decision it is not a great surprise that it was overturned by the EAT. It had essentially concluded that there was a PCP but dismissed Mr Carreras's case because he phrased the PCP he was relying on differently from the PCP the ET found. However, it is possible that, when it hears the remitted case, the ET might decide that Mr Carreras was not put at a disadvantage or that there were no adjustments it was reasonable for UFPR to make.
This case potentially creates some difficult issues for businesses that operate a 'long hours culture' to meet client demand or other deadlines (such as, say, law firms or other professional services businesses). Employees in such businesses will often have a degree of autonomy over when they work and their employers may assume that, because they are working late, they are happy to do so. It is certainly easy to see how UFPR might have assumed that Mr Carreras was happy to work late until he raised the issue, particularly as he had always worked late prior to his accident.
A sensible approach would be to ensure that any employees who have returned to work through a phased return or who have a disability are managed carefully from a working hours perspective. Holding regular meetings with such employees to understand how they feel about their working hours would be a safer approach than assuming that they are happy to work long hours.
Equally, it is not clear whether UFPR referred Mr Carreras to occupational health. The EAT's judgment states that the ET was not provided with any medical reports, which may suggest no such referral was made. We would hope that a good occupational health professional might either have flagged the need to consider adjustments for late working or given UFPR good grounds to be able to argue it was unaware he had a disability (which might have defeated a claim).
Finally, this judgment illustrates the potential perils of relying on highly technical arguments in discrimination claims. ETs will be expected to apply discrimination legislation in a manner that achieves its aims rather than narrowly. UFPR would have been in a much stronger position had it been able to persuade the ET that there was no expectation that Mr Carreras work long hours and that he did so voluntarily.