Employment Law Update - Long working hours and reasonable adjustments

Published: 28/06/2016

The Employment Appeal Tribunal (EAT) held that an expectation that an employee would work long hours, rather than an express requirement, could still amount to a ‘provision, criterion or practice’ for the purposes of establishing a disability discrimination claim based on a failure to make reasonable adjustments.

Carreras v United First Partnership Research, EAT

Facts
Mr C had a serious cycling accident, after which he suffered ongoing symptoms including fatigue and difficulties with concentrating and working late in the evenings. On his return to work he initially worked no more than eight hours per day, but he was subsequently asked to work late on specific occasions. This later became an expectation on the part of his employer, which Mr C was reluctant to challenge in case it resulted in him being made redundant or losing his bonus.

He eventually resigned and brought claims for constructive dismissal and disability discrimination, alleging that his employer had failed to make reasonable adjustments by requiring him to work late.

The employment tribunal rejected his claims, holding that the employer’s assumption that Mr C would work late was not a requirement amounting to a ‘provision, criterion or practice’ (PCP) for the purpose of establishing a duty to make reasonable adjustments.

EAT decision
The EAT upheld Mr C’s appeal. The employment tribunal had adopted too narrow an approach to deciding whether a PCP had existed. An expectation or assumption on the part of his employer that he would work late amounted to a PCP, putting Mr C at a substantial disadvantage compared with a non-disabled person.

The case was remitted back to an employment tribunal to decide whether Mr C’s claim of disability discrimination should be upheld.

Consequences
The EHRC Code of Practice already makes it clear that for the purposes of establishing a duty to make reasonable adjustments, a PCP should be construed widely. This case is a useful reminder that a workplace PCP is not limited to formal, express or contractual requirements but can extend to include a workplace culture that makes people feel obliged to undertake certain working patterns, including a long-hours culture.

The content of this article is for general information only. For further information regarding reasonable adjustments to long working hours, please contact a member of Birketts' employment team. Law covered as at June 2016.

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