UK: Failure to make reasonable adjustments and constructive dismissal: expectation that employee works long hours was a PCP

Under UK disability discrimination law, an employer has a duty to make reasonable adjustments for a disabled employee where there is a “provision, criterion or practice” (PCP) which puts a disabled person at a substantial disadvantage compared with a non-disabled person.

Mr Carreras was an analyst for United First Partnership Research, a brokerage firm, when he was involved in a serious road accident whilst on his bicycle. He returned to work suffering with headaches, dizziness, difficulty with concentrating and working late. Prior to the accident he typically worked 9am to 9pm. After his accident, he worked 8am to 7pm but soon came under pressure to work later, by requests to work late, progressing to an assumption he would do so, making him feel he might be made redundant or lose his bonus if he did not. After emailing one of the business owners objecting to working late due to tiredness, he was reprimanded in front of his colleagues which prompted him to resign and leave the company.

The Employment Tribunal found Mr Carreras was disabled but dismissed his disability discrimination claim because it found he had not been “required” to work late. However, the Court of Appeal found that the Tribunal was wrong to scrutinize the degree of compulsion to work late. Instead, it should have looked more broadly at the situation as it was clear from Mr Carreras’s evidence that he genuinely felt under pressure to work late (because of an expectation and assumption that he would) and this was enough to establish a PCP so as to trigger the duty to make reasonable adjustments.

Comment:

Where in the workplace there is a “long hours” culture, this can make people feel obliged to work late even where it is bad for their health. This case illustrates how this practice, even if not set by written rules, is potentially capable of being a “provision criterion or practice”, particularly if, as in this case, it is accompanied by an explicit request to work late. Employers should be aware that a culture which requires staff to work in a particular way can be enough to trigger a disability discrimination claim from disabled employees who suffer as a result. Where an employer is aware that an employee is disabled, it should take heed of the employee’s requests/grievances and consider whether there are any adjustments it could reasonably make to help the employee overcome any substantial disadvantage they face compared to their non-disabled colleagues.

Carreras v United First Partnership Research [2018]EWCA Civ 323 Court of Appeal