Employment And Pensions E-Bulletin Article

JIM ConnieThe EAT recently held that the expectation for a disabled employee to work long hours constituted a provision, criterion or practice ("PCP") which requires an employer to make reasonable adjustments to avoid disability discrimination. The case confirms that a PCP should be interpreted widely making it easier for employees to bring discrimination claims. The case also confirmed that a fundamental breach of contract does not need to be the sole reason for a resignation for a constructive dismissal claim to succeed. Connie Jim, associate, looks at the case and considers the practical implications. (Carreras v United First Partnership Research UKEAT/0266/15.)

Background

Under the Equality Act 2010 employers are required to make reasonable adjustments if a provision, criterion or practice puts a disabled person at a substantial disadvantage to a non-disabled person.

Constructive unfair dismissal occurs when an employee resigns because of their employer's conduct, which amounts to a fundamental breach of contract constituting a reason for the employee's resignation.

Summary

Mr Carreras worked as an analyst for United First Partnership Research ("United") from October 2011 to February 2014. He worked long hours from 8-9am until 9-11pm. In July 2012 Mr Carreras was involved in a serious road accident and was severely injured. He returned to work within a few weeks, but suffered physical symptoms such as dizziness, fatigue and headaches which made it difficult to concentrate and work in the evenings. United was aware of this but no medical reports were provided.

Initially Mr Carreras worked 8 hours a day, but United began to request Mr Carreras worked longer hours and there became an assumption he would do so. Mr Carreras felt under pressure to work late in fear of being made redundant or losing his bonus. He objected to working late hours. There was a heated exchange in front of the other employees where Mr Carreras was reprimanded and told he could leave if he did not like it. Mr Carreras resigned, and sent an email with the word "I resign" with a more detailed email setting out his various other reasons for resigning sent after United contacted him with regard his restrictive covenants.

Mr Carreras claimed constructive unfair dismissal and disability discrimination. In the first instance Mr Carreras was unsuccessful. The ET held there was no PCP because the "expectation" was not a "requirement". This was despite accepting that Mr Carreras was requested and then expected to work long hours after an initial period.  It also found that whilst the cumulative conduct of United could amount to constructive dismissal, it was not the reason Mr Carreras resigned giving weight to the fact that Mr Carreras moved to the US to be with his wife after resigning and also stating when being cross examined that he would have stayed had he been asked to. 

The EAT allowed Mr Carreras' appeal. They noted that PCP should be interpreted liberally and based on the real world situation, not in the restricted manner of the ET. Mr Carreras felt obliged and pressured into working late. The 'expectation' that Mr Carreras work long hours amounted to a 'requirement', and therefore the expectation Mr Carreras would work long hours is a PCP.

The EAT also found constructive unfair dismissal. The breach of contract, arising from cumulative reasons only needs to constitute one reason for the resignation not the sole reason. Mr Carreras' resignation constituted a response to the breach by United and therefore there was constructive dismissal.

Analysis

This case does not significantly change the legal position for employers and instead acts as a reminder of how wide the definition of a PCP can be. Employers, especially those how operate a long hours culture should therefore think carefully about the working environment and reasonable adjustments they may be required to consider and provide for disabled employees, particularly those who return from sick leave and/or phased returns.

This case also highlights the need for employers to communicate with its employees and obtain medical advice where appropriate. Regular contact and meetings with disabled employees are important to understand how they feel about their working hours, what they are capable of, and comfortable with doing. Referrals to occupational health services can also be helpful. No medical reports were provided to the ET in this case, suggesting no referral was made. If this had occurred, the occupational health professional could have raised the late hours issue and suggested possible adjustments. A possible defence for United could have been available if they were unaware of the disability but had taken appropriate steps in referring Mr Carreras to occupational health. However, it should not be forgotten that case law also dictates that an employer must make its own assessment and cannot rely solely on an occupational health report.

The case has been remitted to the Employment Tribunal to consider, amongst other things, the reasonable adjustments United should have made.

or more information, please contact Connie Jim, associate, on +44 (0)1392 685267 or email connie.jim@footanstey.com or your usual contact in the Foot Anstey employment team.