Great expectations (or how an expectation can be a requirement)

The Employment Appeals Tribunal (EAT) has this week held that an expectation or assumption that a disabled employee would work late constituted a provision, criterion or practice (PCP), requiring the employer to make reasonable adjustments.

Reasonable adjustments

Employers have a duty to make reasonable adjustments to help disabled job applicants, employees and former employees. In order successfully to bring a claim for a failure to make reasonable adjustments, an employee needs to identify that they were placed at a disadvantage by a PCP, a physical feature of the employer's premises or an employer's failure to provide an auxiliary aid. The Equality and Human Rights Commission Code states that the phrase "provision, criterion or practice" "should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions".

Case background

The background to the case of Carreras v United First Partners Research was that the Claimant, Mr Carreras, was a high performing analyst in an independent brokerage and research firm before he suffered serious injuries in a bicycle accident. Prior to his injuries, Mr Carreras worked long hours but following the accident he experienced ongoing symptoms of dizziness, fatigue and headaches, had difficulties concentrating and focusing, and found it difficult to work in the evenings.

In the first six months after his return, the Claimant worked no more than eight hours a day. He then began to request late working, which led to requests being made of him and eventually an assumption that he would work late one or two nights per week. The company began asking him which nights he would be working late rather than asking whether he was prepared to work any at all.

Mr Carreras eventually informed the business that he was formally objecting to working late because of his tiredness. During a heated exchange with one of the owners of the business, he was informed that if he did not like it he could leave. The Claimant resigned and brought claims of disability discrimination (failure to make reasonable adjustments) and constructive dismissal.

The judgment

In his claim, Mr Carreras relied on the PCP of "being required to work late" but the company argued that he had voluntarily worked late after his accident and they had only requested him to do so, not required it. The Employment Tribunal rejected Mr Carreras' claim on the basis that an expectation or assumption was not a "requirement", which was how his PCP was pleaded.

The EAT upheld Mr Carreras' appeal, citing the protective nature of the Equality Act from which the duty arises and said that this was consistent with the EHRC Code's wide interpretation of a PCP, as cited above.

Where does this leave us?

For employers, this case is a salutary reminder of how wide the definition of PCP can be, and therefore the need to think holistically about the working environment when considering reasonable adjustments for a disabled employee. It is worth reminding ourselves that PCPs are also used as the basis for indirect discrimination claims by disabled and non-disabled employees where the PCP places a particular group at a disadvantage.

I'm not sure, though, that this case significantly changes the legal position for employers. It was already clear that the definition of a PCP should be construed widely and previous cases have already found that they can extend to informal practices and even one-off decisions.

An interesting point arising in this case is the (significant) extent to which the EAT was willing to be flexible in its interpretation of the drafting of Mr Carreras' claim - definitely one for lawyers to have in mind when drafting pleadings before the Tribunal (or not if acting for the Claimant!).