Employers are aware that they are under a duty to make reasonable adjustments where a provision criterion or practice (PCP) puts a disabled employee at a substantial disadvantage compared with non-disabled employees. The recent EAT case of Carreras v United First Partnership Research shows that even an expectation or an assumption from the employer that an employee would work longer hours could result in an indirect discrimination claim.
Mr Carreras had been working for nearly three years as an analyst for the defendant’s brokerage firm, between October 2011 and 14 February 2014. He worked long hours, typically 12 hours a day.
In July 2012, Mr Carreras was involved in a serious bike accident and suffered from severe injuries. Although he returned to work after a few weeks, he suffered from persisting symptoms including headaches, dizziness, fatigue and difficulty with concentrating. Consequently, in the first six months after his return, Mr Carreras worked no more than 8 hours a day. Thereafter, his employer requested that he work longer hours and then simply expected/assumed that he would do so.
On 14 February 2014, Mr Carreras emailed his employer objecting to working late in the evening due to his condition. It was found that in response his employer in effect told him he could leave should he disagree with the working conditions. Mr Carreras subsequently resigned and sued his employer for unfair constructive dismissal and disability discrimination.
The employment tribunal found that Mr Carreras’s employer expected him to work longer hours but failed to recognise this assumption as a PCP. It considered there were no explicit requirement for the employee to work late and therefore no duty on the part of the employer to make reasonable adjustments.
However, the Employment Appeal Tribunal allowed Mr Carreras’s appeal and found the tribunal had erred in its decision. It considered that Mr Carreras felt obliged to work late, and that the expectation or assumption from the employer was in fact a PCP. The case was sent back to the employment tribunal for further consideration as to whether the nature of the disadvantage suffered by Mr Carreras would imply that reasonable adjustments should have been made.
Working longer hours is deeply rooted in some workplace cultures and employees are not always expressly told they must work late, although in reality that is either the expectation or the only way in which they can get their work done or progress their careers. Employers should be aware of the consequences this may have on disabled employees (or other employees with protected characteristics in the context of indirect discrimination claims).
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