The Equality Act 2010 imposes a duty on employers to make reasonable adjustments in certain circumstances, including where a “provision, criterion or practice” (PCP) puts a disabled person at a substantial disadvantage compared with those who are not disabled. A PCP can include formal or informal policies, rules, practices, arrangements and even one-off decisions.
If the employer knows or could reasonably be expected to know of the disability, and that the disabled person is likely to be placed at a substantial disadvantage, the employer must take reasonable steps to avoid the disadvantage.
The recent case of Carreras v United First Partnership Research, considered whether an employer’s expectation or assumption that employees would work late could amount to a PCP.
Mr Carreras was an analyst for United First Partnership Research (United). He took several weeks off work following a cycling accident however, after returning to work, he continued to be affected by dizziness, fatigue and headaches. He also experienced difficulty concentrating and working late.
Before the accident, Mr Carreras regularly worked from 8.00 – 9.00am until about 9.00 – 11.00pm. In the six months after he returned to work, he worked no more than eight hours a day. Then, he started working from 8.00am until 6.30 – 7.00pm. Subsequently, United requested that he work late and this became an assumption that he would work late on one or two nights per week. He would be asked which nights he would be working late, rather than being asked whether he was prepared to work any late nights at all.
Mr Carreras was concerned that he might be made redundant or lose his bonus if he did not work late, but eventually he raised his objections. In a heated exchange with one of the owners of the business, he was told that if he did not like it he could leave. He left the office. When he returned later that day to pack up his belongings, he told a member of staff in Human Resources that he found the business owner’s behaviour abusive and that he was resigning.
Mr Carreras brought claims in the Employment Tribunal (ET) for disability discrimination (failure by his employer to make reasonable adjustments) and constructive dismissal.
Mr Carreras argued that United had applied a PCP – in this case, a requirement to work late – which put him at a substantial disadvantage in comparison with those who are not disabled, and that United had failed to take reasonable steps (such as allowing him to work shorter hours) to avoid the disadvantage.
Despite accepting that Mr Carreras was disabled, that United knew of his disability, and that he had been placed at a disadvantage, the ET dismissed his claim. The ET found that Mr Carreras had not been forced to work late and therefore an expectation or assumption of working late was not the PCP he was relying on (i.e. a requirement to work late).
On appeal, the Employment Appeal Tribunal (EAT) found the ET’s approach to the PCP overly technical and too narrow, and that an expectation or assumption of working late was sufficient to establish the PCP. The EAT remitted the case to the ET for it to consider the nature and extent of the disadvantage, and to assess the adjustments that it might have been reasonable for United to take.
Mr Carreras’s claim for constructive dismissal was rejected by the ET (you can find our previous article on constructive dismissal here). The EAT held that the ET had erred in its approach, by focusing on whether United’s actions were the only reason for Mr Carreras’s resignation. The correct approach is that the employer’s conduct only has to be a reason for the resignation, not the reason for it. The EAT found that Mr Carreras had been unfairly constructively dismissed.
What does this mean for employers?
- Employers should consider the policies, rules, and practices they have in the workplace and whether they might be discriminatory, not only against disabled employees but whether they put others with a protected characteristic at a particular disadvantage. For example, an assumption that employees will work late may be indirectly discriminatory against women (as women are still statistically more likely to take on a greater share of childcare responsibilities) or against those who, for example, observe religious practices at particular time/day.
- It is important to note that an employer’s expectation on an employee to work late may amount to a PCP and, therefore, potentially give rise to the duty to make reasonable adjustments even where the employee has been willing to work those hours in the past.
- If there is a practice of working late in the workplace, employers need to consider whether this may be in breach of the Working Time Regulations which set out workers’ entitlements to daily and weekly rest breaks, and the 48 hour working week limit. It is possible for workers to opt-out of the limit, however employers cannot force them to sign an opt-out or subject them to a detriment if they refuse to opt-out. Workers may also opt back in upon giving written notice (of up to a maximum period of 3 months).
- Employers should be aware of the risks that an employee who has other reasons for leaving may still pursue a claim for constructive dismissal.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).