Is an expectation that a disabled employee work long hours discrimination?
The Employment Appeal Tribunal has held that an expectation that an employee (who had been involved in a serious accident which resulted in him having difficulty in working late in the evening) work long hours was a provision, criterion or practice for the purpose of disability discrimination.
The Equality Act 2010 provides a duty on employers to make reasonable adjustments for disabled employees to ensure that they are not placed at a substantial disadvantage compared to non-disabled colleagues. The obligation arises where they are placed at a disadvantage by:
• An employer’s provision, criterion or practice.
• A physical feature of the employer’s premises.
• An employer’s failure to provide an auxiliary aid.
A provision, criterion or practice includes formal or informal policies, rules and practices.
Mr Carreras was employed by United First Partners Research (the ‘Employer’) as an analyst. The Employer is an independent brokerage and research firm.
On the 22nd July 2012 Mr Carreras was involved in a serious road accident on his bike and as a result suffered severe injuries. The symptoms of Mr Carreras injuries included dizziness, fatigue, headaches and difficulty concentrating which made it hard for him to work in the evenings.
Prior to his accident Mr Carreras had been a high performer and often worked from 8-9am until 9-10pm.
When he returned to work Mr Carreras worked 8 hour days and rarely worked late evenings. After a short period of time Mr Carreras was required to work one or two later nights in the week and he alleged that he was put under pressure to work later.
On 14 February 2014 Mr Carreras emailed his Employer informing them that he formally objected to working late in the evenings because of his condition. Later the same day Mr Carreras got into an argument with the owner of the business Mr Mardel and he told Mr Carreras to leave if he did not like it.
Mr Carreras left the office and returned two hours later to collect his belongings. He informed HR that he found Mr Mardel’s behaviour as abusive and unacceptable and resigned. Mr Carreras wrote a detailed letter dated 18th February 2014 setting out his reasons for resigning.
Mr Carreras made a claim to the Employment Tribunal arguing disability discrimination and that the conversation with Mr Mardel had amounted to a dismissal. In the alternative he argued that it was constructive unfair dismissal. Whilst the Tribunal accepted that he was a disabled person within the meaning of the Equality Act 2010 they did not agree that the Employer had failed to make a reasonable adjustment because there was no provision, criteria or practice requiring Mr Carreras to work late hours.
The Tribunal also decided that Mr Carreras had not been dismissed by Mr Mardel on the 14th February 2014, and that there was no fundamental breach of contract by the Employer and so his constructive unfair dismissal claim was also unsuccessful.
Mr Carreras appealed to the Employment Appeal Tribunal.
The Employment Appeal Tribunal considered whether the requirement or expectation to work late hours was in fact a provision, criterion or practice and decided that the tribunal had been wrong to take a narrow approach and find that Mr Carreras had not been forced to work late. The employer’s expectation, initially communicated as a request for the employee to work long hours, then based on an assumption that he would do so, was, it said, sufficient to constitute a provision, criterion or practice.
On the issue of constructive dismissal, the Appeal Tribunal decided that the Employer’s breaches were the reason for Mr Carreras resignation.
The case was therefore referred back to the Employment Tribunal to consider the issue of reasonable adjustments and disability discrimination.
Points to note
This is an interesting case in that it seems there was no express policy or instruction that Mr Carreras work ate hours, but rather an expectation that had developed over time.
I would recommend that you avoid creating a workplace culture in which staff feel obliged to work in a particular way, even if it is disadvantageous to their health. You should also take care to safeguard employee health if they are pushing themselves to work longer and harder hours of their own volition.
Encouraging a healthy work life balance and culture within your business will ensure that you get the best out of your staff.
Action to take
1) Check what policies you have in place with regards to safe working practices;
2) Ensure you are aware of any employees who have a disability and note that this may change and develop over time;
3) Seek advice with regards to reasonable adjustments for employees with disabilities.
Mr Carreras v United First Partners Research – Employment Appeal Tribunal