‘Long hours culture’ could amount to disability discrimination – United First Partners Research v Carreras (Court of Appeal)Print publication
The Court of Appeal has held that an employer’s expectation and ‘culture’ that its employees should work long hours may amount to a provision, criterion or practice under disability discrimination legislation which means that the employer must make reasonable adjustments if this PCP risks putting a disabled person at a substantial disadvantage.
Mr Carreras suffered severe injuries in a cycling accident that led to him becoming disabled. After some time off, he agreed with his employer that he would return to work on shorter hours. Over time, he gradually began to work more hours than originally agreed and his employer did not query this.
He bought a claim for bullying and threats of redundancy on the basis that his employer’s actions in not preventing him from working longer hours amounted to ‘provision, criterion, or practice’ (PCP) and that his employer should have made reasonable adjustments to prevent this from putting him at a disadvantage. The EAT upheld his claim and the employer appealed. Many legal commentators believed that the EAT’s decision was harsh given that Mr Carreras had worked the extra hours on a voluntary basis and his employer had not asked him to do so (albeit that it hadn’t stopped him from working them either).
The Court of Appeal held that the EAT had been correct in its judgment because the behaviour of Mr. Carreras’ employer amounted to an expectation or assumption that he would work long hours even if there was no actual compulsion involved. It took into account the fact that the employer had not asked Mr Carreras how he was getting on. It also did not take him to one side and remind him that he did not have to work the long hours. The Court held that if the employer had been proactive and reiterated to him that the agreement was for him to work the shorter hours, his claim may not have been successful.
Employers should be proactive when dealing with disabled employees who have returned to work on a modified working arrangement. If they don’t and the employee begins to work over and above the agreed hours on a regular basis, there is a risk that a PCP will arise and this could lead to a disability discrimination claim. If the employee seems to feel able to do more because they are consistently choosing to work more hours then it would be advisable to have a conversation with the employee to discuss the concerns. If the employee then states that they are genuinely happy to do more hours and are feeling able to do so then proper steps can be taken to formalise this.