Under section 20(3) of the Equality Act 2010 (‘EA 2010’), an employer is obliged to make reasonable adjustments when there is a ‘provision criterion or practice’ (‘PCP’) which puts a disabled person at a substantial disadvantage compared with a non-disabled person. A PCP need not be as stringent as a requirement or condition (the previous wording under statute) and, according to the EHRC Code, must be interpreted liberally. 

The Employment Appeal Tribunal (‘EAT’) has recently heldthat expecting or assuming that an employee will work late can amount to a PCP for the purposes of the EA 2010.

Background

Mr Carreras was a high performing analyst who routinely worked 12 to 13 hours per day for his employer, United First Partners Research. In July 2012, Mr Carreras sustained serious injuries in a traffic accident. As a result of his injuries he suffered from dizziness, fatigue and headaches, along with difficulties concentrating and focusing. His injuries constituted a disability under the EA 2010.

Following the accident, Mr Carreras was able to return to his role as an analyst but worked fewer hours. However, over time UFPR began requesting that he work late and subsequently began assuming that he would work late at least one or two nights each week. Mr Carreras formally objected to working late as a result of the tiredness he suffered in the evenings, a consequence of his injuries.   He was told that if he did not like it he could leave. Mr Carreras resigned and brought claims for constructive dismissal and disability discrimination (failure to make reasonable adjustments).

 The Employment Tribunal

Mr Carreras argued that the relevant PCP was the ‘requirement’ to work late. In the ET, it was acknowledged that UFPR had begun assuming that Mr Carreras would work late rather than requesting that he did so and that by working late he had suffered a disadvantage due to his disability.   However, the ET concluded that it was an ‘expectation or assumption’ that he work late but that it was not a ‘requirement’ as had been pleaded by Mr Carreras. The disability discrimination and constructive dismissal claims were dismissed.

The Employment Appeal Tribunal

Mr Carreras appealed and his employer cross-appealed. The issue before the EAT in respect of the disability discrimination claim was whether Mr Carreras had established the existence of a PCP.   The EAT disagreed with the ET’s restrictive interpretation and held that what the ET in fact should have done was to have approached the question on a more liberal basis – the ‘expectation or assumption’ that Mr Carreras would work late evenings reasonably amounted to a ‘requirement’ that he would do, and thus satisfied the PCP issue. This issue was remitted to the Tribunal to consider what the nature and effect of any disadvantage Mr Carreras suffered by virtue of the PCP was and, further, whether any reasonable adjustments were made.

Comment

This case is a reminder for employers to carefully consider the kind of culture that it creates in the workplace.  Even where it is not expressly required or requested a culture of working long hours is likely to amount to a PCP, triggering a duty to make reasonable adjustments. 

Carreras v United First Partners Research