In Carreras v United First Partners Research, the Court of Appeal has upheld a decision by the Employment Appeal Tribunal (EAT) that an expectation that a disabled employee would regularly work late could amount to a provision, criterion or practice (PCP) under the Equality Act 2010, requiring the employer to consider making reasonable adjustments.
Background
Mr Carreras worked as an analyst for a brokerage firm. In 2012, he had a serious accident. He had to take several weeks off work, and when he returned, he still suffered physical symptoms including dizziness, headaches, fatigue and difficulty focusing. Before the accident, he regularly worked twelve hour days. For the first six months after the accident he limited his working day to eight hours, thereafter increasing to around eleven hours, but still finishing by 7pm. From October 2013, his employer started making requests for him to work later and when he agreed, an expectation that he would continue to do so began to develop. By February 2014, there was an assumption that Mr Carreras would be working late at least one or two evenings a week.
Amongst other things, Mr Carreras brought a claim in the Employment Tribunal that his employer had failed to make reasonable adjustments in relation to the requirement to work long hours.
Decision
The Employment Tribunal (ET) originally dismissed his claim on the basis that there was no PCP as Mr Carreras had never been formally “required” to work late, and that at most there was just an expectation that he would do so. This decision was overturned by the EAT, which held that the ET’s interpretation of PCP was too narrow and the expectation to work late was enough to form one. The Court of Appeal agreed with the EAT; it held that a “requirement” did not necessarily mean “coercion”, and depending on the context it can amount to no more than a request where there is pressure to agree.
Where does this leave us?
So, is a long hours culture still permissible? In short, yes. However, where a worker is or could possibly be disabled, an employer must look carefully at their working practices and consider whether the individual is able to cope with such demands. If in doubt, an employer should maintain dialogue with the individual and consider obtaining a medical report to determine what duties the individual is capable of performing.
It is also important for employers to remember that PCPs, even those considered to be fair because they apply equally across the workforce, could expose them to other potential discrimination claims. For example, a long hours culture could adversely impact working women with childcare responsibilities, enabling them to claim indirect sex discrimination. It is therefore essential that employers regularly review working conditions and manage expectations.
Finally, with employers seeing a significant rise in the number of mental health cases being reported, if you operate in what could be considered a particularly stressful and long-hours environment, it is essential that managers and staff are educated about mental health, how issues can be identified and people supported. For further information please click here.