A disabled employee who was disciplined for 60 days’ absence over a 12-month period was...
Expectation that employee work long hours was a PCP
United First Partners Research v Carreras
An expectation or assumption that someone will work late may be sufficient to amount to a ‘provision, criterion or practice’ (PCP) for the purposes of a claim of failure to make reasonable adjustments in disability discrimination.
The first hurdle for any claimant trying to make out a successful claim of failure to make reasonable adjustments is to show that their employer had applied to them a ‘provision, criterion or practice’ (PCP) that puts them, as a disabled person, at a substantial disadvantage in comparison with colleagues who are not disabled. The claimant must then show that their employer did not take such steps as were reasonable to avoid the disadvantage. A PCP need not be as stringent as a requirement or condition and, according to the EHRC Code, must be interpreted liberally.
Mr Carreras habitually worked long hours as an analyst for UFPR, a brokerage firm. This ended when he had a cycling accident and suffered physical and emotional symptoms which the tribunal held amounted to a ‘disability’ for the purposes of the Equality Act 2010. After the accident his employer asked him to work late a couple of evenings and then it was clear it was expected when his employer asked which evenings he would be working late, rather than whether he was prepared to do so at all. Mr Carreras sent an email formally objecting to the late hours and the result of this was a public reprimand by his manager. He resigned and brought a claim for failure to make reasonable adjustments (as well as a constructive unfair dismissal claim). He relied on a PCP of his employer requiring that he work late.
The tribunal found that although Mr Carreras was ‘expected’ to work late, this did not amount to a ‘requirement’. Allowing an appeal, the EAT criticised the tribunal for adopting an approach that was too narrow. While a requirement might normally be taken to imply some compulsion, an expectation or assumption placed on an employee by the employer may well be enough. The PCP should be interpreted widely to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions. UFPR appealed. The Court of Appeal upheld the EAT’s decision, largely on the same grounds.
Mr Carreras’ case was that he had been ‘required’ to work long hours. This, said the court, does not necessarily carry a connotation of coercion and might represent no more than ‘a strong form of request’. It was made clear to him that he was expected to work long hours by a pattern of repeated requests, which created pressure on him to agree. This was capable of amounting to a PCP - in particular a ‘practice’.
Link to judgment: http://www.bailii.org/ew/cases/EWCA/Civ/2018/323.html
This case is an important one because it extends the boundaries of what was traditionally regarded as a requirement. It is easy to see this principle being extended further through case law to situations where the employee is ignored by his employer whenever he leaves on time, or not given the quality work to deal with as a result.