In the case of United First Partners Research v Carreras  an expectation that an employee would work long hours was found to be a provision, criterion or practice for the purposes of bringing a disability discrimination claim for failure to make reasonable adjustments.
The duty arises under section 20 of the Equality Act 2010 where a disabled person is placed at a substantial disadvantage by:
– An employer’s provision, criterion or practice (PCP).
– A physical feature of the employer’s premises.
– An employer’s failure to provide an auxiliary aid.
Mr Carreras worked for United First Partners Research (United First) as an analyst. He worked very long hours, typically from 9am to 9pm in the evening. However, he had a cycling accident in 2012 which severely affected him, and he was unable to return to work on the same hours as before.
In the first 6 months after his return to work, he worked 8 hours a day. In October 2013, he was asked to work later in the evenings. When he agreed to this, an expectation began to develop that he would do so and by the time he resigned in February 2014, there was an assumption he would work one or two evenings a week. Mr Carreras found working these very long hours difficult and eventually raised a formal complaint. After a dispute with his manager, he resigned and brought a constructive unfair dismissal claim and a claim of disability discrimination, specifically that United First had failed in its duty to make reasonable adjustments. Mr Carreras said that United First imposed on him a PCP, by requiring him to work unreasonable hours and failed in its duty to make reasonable adjustments.
Although initially unsuccessful in showing there was a PCP to work long hours, this point was overturned on appeal. United First then appealed to the Court of Appeal, arguing it had not imposed the PCP complained of because Mr Carreras had never been “required” to work in the evenings. At most there had been an expectation he would do so, but they said this did not amount to a PCP.
The Court of Appeal decided that an expectation to work long hours was sufficient to amount to a “requirement” and, in turn, a PCP.
It was not necessary for Mr Carreras to show he had been forced or coerced into working long hours – an expectation or assumption placed upon him could suffice. The Court approved a “real world” approach to such cases. Although Mr Carreras was not ordered to work in the evenings, it was made clear to him by repeated requests that he was expected to do so which created pressure upon him to agree.
Points to note
The case is important because it broadens the scope of what can amount to a “practice” or “requirement” for the purposes of bringing a claim for failure to make reasonable adjustments or an indirect discrimination claim.
The employer in this case never saw or obtained a medical report on Mr Carreras and his injuries as apparently, at least from the outset, they were prepared to go with whatever hours Mr Carreras said he could work. The problems began when they began to ask Mr Carreras to work longer hours and he did not feel able to refuse. If they had sought medical advice, communicated with Mr Carreras and kept his hours under review, perhaps the situation would not have escalated as it did.
Action to take
1. If your business is one where long working hours are the norm, consider the working environment and what reasonable adjustments you should be making to provide for disabled employees, particularly those returning from sick leave.
3. Obtain medical evidence or make a referral to occupational health if appropriate for individual employees.