Expecting staff to work late could be discriminatory
Friday 3rd June 2016
The EAT has recently held, in Carreras v United First Partners Research, that expecting or assuming that an employee will work late can amount to a “provision, criterion or practice” for the purposes of the Equality Act 2010.
Mr Carreras was a successful and high performing analyst who routinely worked long hours 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 EqA 2010.
Following the accident, Mr Carreras was able to return to his role as an analyst but worked fewer hours. His injuries meant that he was unable to work in the evenings as he had done previously. However, over time UFPR began requesting that he work late and subsequently began assuming that he would work late at least 1 or 2 nights each week, confirming only the days on which he would do so. In February 2014, 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).
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 claim was therefore dismissed.
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, holding that as a result of the protective nature of the legislative provisions, the interpretation of the statutory definition of PCP necessitated a “liberal’ rather than an “overly technical approach”.
The EAT therefore concluded that Mr Carreras had established the existence of a PCP and that the ET had taken an “unduly narrow view” and rather should have “adopted a real world view of what a requirement was in this context”. This was particularly so given that the ET found that events had unfolded as alleged by Mr Carreras. The EAT referred to the nature of the employment relationship as having “an element of compulsion” which was relevant in considering whether a PCP had been established. The EAT considered that characterising the PCP as a “requirement” was an “entirely straightforward construction” of Mr Carreras’ case and was simply a means of identifying the PCP rather than a reference to any statutory language. Further, the language of “provision criterion or practice” adopted by the EqA 2010 is generally viewed as allowing a broader and more flexible approach than “requirement” or “condition”.
The case was referred back to the ET for further consideration as although the ET had found that Mr Carreras has suffered a disadvantage, it had not (as a result of its finding regarding the alleged PCP) determined, the precise nature and extent of the disadvantage or assessed what adjustments UFPR might have been obliged to make.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.