Does an employer’s expectation that its employees will work long hours amount to a provision, criterion or practice (“PCP”) which puts a disabled person at a substantial disadvantage compared to a non-disabled person and therefore requires an employer to make reasonable adjustments?
Mr Carreras, was an analyst for United First Partnership Research. He and his colleagues worked long hours, typically coming in at 8am or 9am and working till 9pm or 11pm each day. This was very much his employers expectation.
However, after suffering serious injuries in a traffic accident he suffered from fatigue, headaches, dizziness, problems concentrating and difficulty working late in the evenings.
His employers did not ask for a medical report on his return and for the first six months after the accident Mr Carreras worked no more than 8 hours per day. After that Mr Carreras came under pressure to work longer hours, staying till later into the evenings. Mr Carreras complied because he was fearful that he might lose his bonus or his job if he refused. Over time his employer assumed that he would work till 9-11pm a couple of nights a week and began to ask him which nights he would be working later rather than asking whether he was prepared to work late.
Eventually Mr Carreras objected to working late because he was excessively tired. He was told simply that if he didn’t like it, he could leave. He resigned and claimed that he had been constructively dismissed and discriminated against on the grounds of his disability because his employer had failed to make a reasonable adjustment i.e. not requiring him to work late.
The Equality Act 2010, section 20(3) requires employers to make reasonable adjustments where there is a provision criterion or practice (PCP) which puts a disabled person at a substantial disadvantage compared to a non-disabled person.
The Employment Tribunal dismissed his disability claim because they found there was no “requirement” on Mr Carreras to work late. He appealed.
The Employment Appeal Tribunal found the Tribunal had interpreted the word “requirement” too narrowly and that they should have looked at the reality of the situation. The EAT found there was an expectation that Mr Carreras would work late, this meant that he felt obliged to work late, even though it was disadvantageous for his health. This, together with the assumption by his employer that he would work late, amounted to a “requirement” upon him to do so.
The EAT found that the expectation on Mr Carreras to work long hours was a PCP which put him at a substantial disadvantage compared to non-disabled people. By expecting him to work late, his employer had failed to make the appropriate reasonable adjustment and the EAT upheld the disability discrimination claim.
This case is a reminder to employers to be careful of workplace cultures creating an expectation on employees to behave in certain ways. In this case, United clearly had a workplace culture in which employees were expected to work very long hours. United left themselves vulnerable to potential disability claims by failing to get a Medical or Occupational Health report to find out whether Mr Carreras was being put at a disadvantage and then by failing to handle the situation appropriately when he raised a complaint.
So when an employee returns to work after a period of serious injury or illness what should you do?
- Obtain a medical report on an employee’s return
- Carry out an occupational health assessment to assess what workplace adjustments may need to be made
- Ensure that employees do not feel obliged to work hours that are longer than they are capable of working given their health needs
- Encourage an open dialogue with the employee so that, if there are problems, they feel free to come forward and discuss them
- Ensure that there are periodic reviews to ensure that an employee’s personal needs are being met
- If complaints are raised take them seriously and handle them sensitively
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.