The Court of Appeal has considered whether an expectation that an employee work long hours is a ‘provision criterion or practice’ (PCP) in respect of which the employer is obliged to make reasonable adjustments.

Carreras v United First Partners Research, CA

Facts

Mr Carreras worked as an analyst for a brokerage firm and regularly worked 12-hour days. Following a serious bike accident, he had several weeks off work. When he returned, he continued to suffer significant physical symptoms, including dizziness, fatigue, headaches and difficulty concentrating. He initially worked no more than eight hours per day, but he was subsequently asked to work late on specific occasions. This later became an expectation on the part of his employer, which Mr Carreras was reluctant to challenge in case it resulted in him being made redundant or losing his bonus.

He eventually resigned and brought claims for constructive dismissal and disability discrimination, alleging that his employer had failed to make reasonable adjustments by requiring him to work late.

The employment tribunal rejected his claims, holding that the employer’s assumption that Mr Carreras would work late was not a requirement amounting to a ‘provision, criterion or practice’ (PCP) for the purpose of establishing a duty to make reasonable adjustments.

The EAT upheld Mr Carreras’ appeal (see our previous summary). The employment tribunal had adopted too narrow an approach to deciding whether a PCP had existed. An expectation or assumption on the part of his employer that he would work late amounted to a PCP, putting Mr Carreras at a substantial disadvantage compared with a non-disabled person.

Court of Appeal decision

The court has now upheld the decision of the EAT, rejecting the employer’s appeal. It agreed that an expectation and assumption that Mr Carreras would work late was sufficient to amount to a PCP, meaning that the employer was under a duty to make reasonable adjustments. It also agreed that a cumulation of events prior to his resignation amounted to a repudiatory breach on the part of the employer, entitling Mr Carreras to claim constructive dismissal.

Consequences

This decision is an important reminder of how broadly courts and tribunals will interpret the concept of a PCP for the purposes of an employer’s duty to make reasonable adjustments. In this case, the claimant was repeatedly put under pressure to agree to working longer hours in circumstances where the employer should have considered making reasonable adjustments as a consequence of the claimant’s disability. It is also notable that the employer did not request a medical report, which would have been advisable in these circumstances.