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Employment Law

Legal guidance - compliance - software

06 JUN 2016

Expectation to work late constitutes provision, criterion or practice for discrimination purposes

Expectation to work late constitutes provision, criterion or practice for discrimination purposes
Jessica Ryan
Solicitor, Veale Wasbrough Vizards

The Employment Appeal Tribunal (EAT) has confirmed that an expectation on an employee to work long hours was a provision, criteria or practice (PCP) for discrimination purposes.

The facts

In Carreras v United First Partners Research, Mr Carreras was severely injured in a road accident and had to take time off work. Upon his return to work, he found it difficult to work the long hours he had regularly worked prior to the accident.

Over time, Mr Carreras began to feel under pressure to work late again. Initially, he was asked to stay late, and eventually it was assumed that he would work late on one or two nights per week.

Mr Carreras objected to working late because of his tiredness and continuing effects of the accident. Following an altercation with his manager, Mr Carreras resigned from his post. He subsequently brought a claim for constructive dismissal and disability discrimination, arguing that the 'requirement' to work late amounted to a PCP in respect of which his employer was obliged to make reasonable adjustments.

The Employment Tribunal (ET) accepted that Mr Carreras was disabled for equality law purposes. However, it concluded that, in the absence of an express requirement (as opposed to a mere expectation) that he would work late, there was no PCP. The claim failed on this basis and Mr Carreras successfully appealed to the EAT.

The EAT's decision

The EAT allowed the appeal, applying a liberal approach to the definition of a PCP. It held that an expectation or assumption could be sufficient to establish a PCP. On this basis, the ET's approach had been too narrow.

The claim has been remitted to tribunal to consider the question of reasonable adjustments.

Best practice

Employers are under a duty to make reasonable adjustments where a PCP puts a disabled employee at a substantial disadvantage in comparison with employees who are not disabled.

There is no exhaustive list as to what amounts to a PCP but, as demonstrated by this case, the term can be construed widely. Therefore, employers should ensure that they listen to employees' concerns, obtain medical evidence where necessary, and adopt an approach which is as flexible as possible to reasonable adjustments.
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