When does an expectation to work long hours become a provision, criterion or practice?

By Lupton Fawcett’s Employment Law Senior Associate, Alex Evans

Mr Carreras worked as an analyst for United, a brokerage firm.  He worked long hours, often until 11pm, until he had a serious cycling accident.  Following his return to work he worked less hours.

After a few months, requests were made for him to work later and whilst he was unhappy about doing so, he was concerned that he might lose his bonus or be made redundant if he didn’t.

When he raised concerns, Mr Carreras was told that if he did not like it, he could leave and was reprimanded in front of his colleagues.

He subsequently resigned and brought Tribunal claims for disability discrimination and constructive dismissal, alleging that United had failed to make reasonable adjustments to the requirement to work long hours.

The Tribunal accepted that Mr Carreras was disabled and that there was a request, then an expectation for him to work longer hours.  However it found that United had not failed to make reasonable adjustments as its expectation was not a PCP.

The Tribunal also concluded that whilst United’s conduct gave rise to a constructive dismissal claim, Mr Carreras did not resign in response to this conduct as he had gone to the US to be with his wife and had indicated that he might have remained employed if asked.

Mr Carreras appealed to the EAT.

The EAT found that the Tribunal’s approach to the PCP was too narrow, focussing on the fact that Mr Carreras had pleaded this as a “requirement”.   It had scrutinised the degree of compulsion to work late rather than looking at the reality of the situation, which was that Mr Carreras felt obliged to work late.

The Tribunal had also failed to appreciate that the breach of contract identified by Mr Carreras only needed to constitute one of the reasons for his resignation, not the sole reason.

United appealed to the Court of Appeal, which dismissed the appeal.

The Court held that an expectation for a disabled employee to work long hours amounted to a PCP.  The Court found that the term “required”, was not necessarily equivalent to “coerced”, but could instead be an expectation that an employee would work late. It was clear that Mr Carreras felt under pressure to work late and “required” could encompass this.

The Court also agreed that the Tribunal had erred in failing to treat United’s breach as causing Mr Carreras’ resignation.

This case establishes that where employees feel obliged to work (either in a particular way or long hours), this could be interpreted as a requirement by the employer under discrimination law and could lead to claims, as in this case, for failure to make reasonable adjustments.  Employers should therefore be mindful of their workplace cultures to ensure that they do not inadvertently breach their obligations to employees.

For further help or advice, please contact Lupton Fawcett’s Employment Law Senior Associate, Alex Evans on 0113 280 2085 or alex.evans@luptonfawcett.law

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