Disability discrimination: requirement to work late may amount to a PCP
Thursday 8th March 2018
The Court of Appeal has 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” and need not necessarily involve coercion.
Mr Carreras was a successful analyst who routinely worked long hours for his employer UFPR. In 2012 he sustained serious injuries in a traffic accident, which left him suffering from dizziness, fatigue and headaches, along with difficulties concentrating and focusing. When Mr Carreras returned to work he was unable to work long hours as he had previously done.
However, over time UFPR began asking Mr Carreras to work later in the evenings and when he agreed, an expectation developed that he would continue to do so. By the time he resigned, it was assumed that he would be working one or two evenings a week, with UFPR only confirming on which days he would do so. Mr Carreras issued proceedings before the ET arguing, amongst other things, that UFPR had failed in its duty to make reasonable adjustments.
The ET had to identify the PCP alleged to have placed Mr Carreras at a particular disadvantage. Mr Carreras argued that it was the requirement to work late. The ET concluded there was an “expectation or assumption” that he work late, but that it was not a “requirement”. As Mr Carreras had not been forced or coerced to worker longer hours, was no PCP and the disability discrimination claim was dismissed.
The EAT disagreed with the ET’s interpretation, referring to the nature of the employment relationship as having “an element of compulsion” which was relevant in determining 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.
The CA agreed with the EAT and held that the repeated requests had created a pressure to agree to work late and in reality, the only choice was on which days to work late. This constituted a PCP which, depending on the context, may simply take the form of a strong request.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.