Employers have a duty under the Equality Act 2010 to make reasonable adjustments for disabled job applicants, employees and former employees. The duty can arise where a disabled person is placed at a substantial disadvantage by a ‘provision, criterion or practice’ (PCP) operating in the employer’s workplace.
Carreras worked as an analyst at a brokerage firm and regularly worked from around 9.00 until 21.00. In July 2012, he took several weeks off to recover from a bike accident but on his return continued to have symptoms such as dizziness, fatigue and headaches.
He found it difficult to concentrate and work late into the evening and worked no more than eight hours a day in the first six months after his return to work. After that, he tended to work from 8.00 until 19.00. From October 2013, his employer began requesting that he work later, and this then progressed to an assumption that he would do so. Carreras felt he might lose his job, or his bonus, if he did not work late. Eventually he objected and was told if he didn’t like it, he could leave.
He resigned and claimed constructive unfair dismissal and a failure to make reasonable adjustments.
The tribunal found the continuing effects of the accident made him disabled under the Act.
The employer progressing from making open requests to assuming Carreras would work late once or twice a week created an expectation that placed him at a disadvantage. However, crucially, the tribunal decided an expectation the employee would work long hours did not constitute a requirement, and did not constitute a PCP.
The tribunal determined there was no constructive dismissal because Carreras had not resigned “in response to” the employer’s breach of the implied term of mutual trust and confidence.
The Employment Appeal Tribunal found that such an expectation could constitute a PCP. The employment tribunal had adopted too restrictive an approach on this and should have looked at the reality of the situation.
Carreras’ constructive unfair dismissal claim also succeeded. The tribunal had placed undue weight on the fact that he would have retracted his resignation if he had been asked to, and that he had gone to live with his wife in the US following his resignation. He had resigned in response to his employer’s breach of contract (the failure to make reasonable adjustments). The EAT held that the employer's breach of contract only needed to constitute one of the reasons for Carreras’ resignation; it did not have to be the sole reason.
Court of Appeal
In relation to the PCP, the Court agreed with the EAT. The tribunal had adopted a too narrow approach by looking at whether the “requirement” to work late meant the employee had been “coerced” or “forced” to work.
The question to be answered was whether the pattern of requests and the expectation that the employee would work evenings constituted a PCP. On the facts, the pattern of repeated requests made clear the employee was expected to work late evenings, and this created a pressure on him to agree. This could constitute a PCP, or a ‘practice’, under the Equality Act.
The Court also agreed with the EAT in relation to the constructive dismissal claim; the tribunal had erred by failing to find the cumulation of events led to a repudiatory breach of the contract which Carrera’s resigned in response to.
This case highlights the concept of a “provision, criterion or practice” or PCP is wide and can potentially include an expectation that is prevalent within the workplace which puts the disabled employee at a substantial disadvantage when compared to non-disabled colleagues.
The liberal interpretation of PCP could be further expanded on in the future. For example, will it be extended to expectations where there is no previous request from the employer, such as an expectation that they have to work late to ‘get ahead’ of their colleagues. Future case law will be needed to see where the line will be drawn.