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All work and no play – disability discrimination

Employers are under a duty to make reasonable adjustments where there is a provision, criterion or practice (PCP) which puts a disabled employee at a substantial disadvantage compared to a non-disabled person. Could an expectation or assumption that a disabled employee would work long hours amount to a PCP, triggering the duty

Carreras v United First Partnership Research (UFRP)

Mr Carreras was employed by UFPR, a brokerage and research firm. He was good at his job and worked long hours, usually from around 8-9am until 9-11pm.

In July 2012 Mr Carreras was involved in a serious road accident whilst riding his bike. He suffered severe injuries and was badly affected, but returned to work after a few weeks. Upon his return to work he had ongoing symptoms including dizziness, fatigue, headaches and difficulty concentrating. In particular he found it difficult to work in the evenings. It was common ground that Mr Carreras was disabled within the meaning of the Equality Act 2010 as a result of the injuries that he sustained.

During the first six months after his return to work, Mr Carreras worked no more than 8 hours a day. After that, his hours increased and he would start at 8am and work until 6.30-7pm. This continued until the end of 2013. At that time Mr Carreras started to request late working, which led to requests being made of him by UFPR to do so, and then to an assumption that he would be working one or two late nights each week. UFPR began to routinely ask him which nights he would be working late, rather than asking whether he was prepared to work any at all.

Mr Carreras said that he was put under pressure to work late and was concerned that if he did not then he might be made redundant or lose his bonus. In February 2014, matters came to a head. He sent an email to his employer formally objecting to working late in the evenings because of his tiredness. Later that day there was a heated exchange between him and one of the owners of UFPR, during which he was told if he did not like it then he could leave. Mr Carreras said that his employer’s conduct had been abusive and unacceptable, and he resigned the same day. UFPR sent him an email to remind him about his post-termination obligations, to which Mr Carreras responded detailing his reasons for resigning.

Other incidents had occurred leading up to the events on that day, including the late payment of bonuses and inaccurate information being provided by UFPR to Mr Carreras’ personal injury solicitors as part of his claim.

Following his resignation, Mr Carreras left the UK to join his wife who was looking for work in the USA. Mr Carreras brought claims for constructive unfair dismissal and disability discrimination due to a failure to make reasonable adjustments.

Employment Tribunal (ET)

The ET held that UFPR had not failed to make reasonable adjustments because there was no “requirement” for him to work long hours, which is what he had alleged the relevant PCP was. The ET did accept that after his initial period of returning to work, Mr Carreras was first requested and then expected to work one or two evenings per week until late but not “required” to do so. Whilst there were various factors that may have led to him deciding that it was in his best interest to work late, the ET did not consider that he could be described as having been “forced” to do so. His disability discrimination claim was therefore dismissed.

The ET also dismissed his unfair dismissal claim. Interestingly, it found that the cumulative effect of the assumption that Mr Carreras would work late, the delayed bonus payments and the lack of care in the letter to his personal injury solicitors amounted to a fundamental breach of the implied term of trust and confidence. However, it said that that the breach was not the reason for his resignation. Although he said that he was resigning because of the way he had been spoken to in February, he also said that he expected to be asked to stay and if he had been asked then he would have done so. It was only after the resignation had been accepted and being reminded of his post termination obligations that Mr Carreras explained his reasons for resigning a few days later. Mr Carreras appealed.

Employment Appeal Tribunal (EAT)

The EAT allowed Mr Carreras’ appeal in relation to his disability discrimination claim. It found that an expectation or assumption that an employee would work late would suffice for the purposes of being a PCP, triggering the duty to make reasonable adjustments. It recognised that employees can feel obliged to work in a particular way, even if it is detrimental to their health, and in this case even though UFPR did not make open requests, it had become a matter of asking him when not if he would be working late. Therefore, the ET had taken an overly technical approach to this case. The case was remitted to the ET to determine the nature and effect of any disadvantage suffered by Mr Carreras as compared to a non-disabled person and also the question as to what, if any, reasonable adjustments could have been made.

The EAT also allowed Mr Carreras’ appeal in relation to the unfair dismissal claim. It found that that as long as one of the reasons for the resignation was the employer’s breach of contract, the employee could resign and treat themselves as constructively dismissed. In the circumstances, the Judge substituted his finding that Mr Carreras was constructively dismissed.

Comment

“Working culture” and unwritten rules can often make employees feel the need to work long hours. This is a reality where client demands or other deadlines dictate that work needs to be undertaken within a set timeframe. It may be that when this case is reheard in the ET, the Judge might decide the Mr Carreras was not put at a disadvantage compared to non-disabled employees, or perhaps that there were no adjustments that it would have been reasonable to make. However employers should bear in mind adverse effects upon disabled employees who are expected to work long hours, as such expectation can trigger a duty to make reasonable adjustments.

It is not clear what would have happened if there had never been an explicit request on the part of Mr Carreras to work long hours in the first place and he had simply felt pressured to do so because his colleagues were. It will be interesting to see how the case unfolds when it is heard again in the ET.

If you have any employment or HR queries Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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