Expectation that Employee Work Long Hours Engaged Reasonable Adjustments Duty


4 mins

Posted on 20 Jun 2016

An expectation that a disabled employee work long hours is a “provision, criterion or practice” (PCP) meaning that the employer may be under a duty to make reasonable adjustments.

Speedread

An employer’s expectation that an employee work long hours amounted to a provision, criterion or practice, meaning that it would be under a duty to make reasonable adjustments if the expectation placed the employee at a substantial disadvantage. 

The employment tribunal had also been wrong when it decided that the employer’s breach of contract was not the reason for the employee’s resignation. The employer’s breach did not have to be the sole reason for the employee’s resignation. It was sufficient if it was one of the reasons. 

Facts

In Carreras v United First Partnership, Mr Carreras worked long hours, typically 9am to 9pm. He had a serious bicycle accident and had to take several weeks off work. Upon his return, he continued to be affected by physical symptoms from the accident. In the first six months, he worked no more than eight hours per day. He then increased his hours to 8am to 7pm. He then came under pressure to work later. Initially requests were made for him to do so, which progressed to an assumption that he would do so. He felt that he might be made redundant or lose his bonus if he did not work late.

He emailed one of the owners of the business and objected to working late due to tiredness. Later that day the owner came to see him, reprimanded him in front of his colleagues and told him that if he did not like it he could leave. He left the office, returned two hours later and told HR that he found the owner’s behaviour abusive and that he was resigning. A few days later, after receiving a letter reminding him of his post-termination obligations, he wrote setting out his reasons for resigning. A month later he left the UK to join his wife who had taken up a new job in the US.

He claimed constructive dismissal and disability discrimination. 

Disability Discrimination

He argued that his employer had breached its duty to make reasonable adjustments to accommodate his disability. His employer denied that it was under a duty to make reasonable adjustments. It had not required Mr Carreras to work long hours and so had not applied a PCP. Mr Carreras had worked late voluntarily. As it had not applied a PCP, it did not have a duty to make reasonable adjustments. The employment tribunal agreed. 

Constructive dismissal

The employment tribunal ruled that although the employer’s conduct amounted to a repudiatory breach of contract, its breach was not the reason for Mr Carreras’s resignation. It gave weight to the fact that he had gone to the US to be with his wife and had only expanded on the reasons for his resignation when reminded of his post-termination obligations.

Mr Carreras appealed to the Employment Appeal Tribunal (EAT). 

Decision

The EAT upheld the appeal. In relation to his disability discrimination claim, the employment tribunal had taken too narrow a view of what amounts to a PCP. It was not necessary for the employer to have required Mr Carreras to work long hours; it was sufficient that it had at first requested, and then expected, him to do so. 

The tribunal had also taken the wrong approach to his constructive dismissal claim. The employer’s breach must be one of the reasons for the employee’s resignation, but does not need to be the sole reason for it. The tribunal placed undue weight on the fact that Mr Carreras had decided to join his wife in the US. That factor could not detract from the fact his employer’s breach of contract was one of the reasons he had resigned.

Implications

Businesses which expect employees to work long hours will have to make adjustments for disabled employees if they are substantially disadvantaged as a result. The threshold for substantial disadvantage is a low one and only requires that the disadvantage is more than minor or trivial. Of course, whether a disabled employee is substantially disadvantaged will depend on the nature of their disability. Many disabled employees will be just as able to cope with working long hours as non-disabled employees. 

Employees will be able to claim constructive dismissal if their employer’s repudiatory breach of contract is one of the reasons for their resignation. It does not have to be the only reason.

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