The Court of Appeal has recently considered whether a requirement to work long hours was a provision, criterion or practice (PCP) for the purposes of a claim of disability discrimination.

Background

Section 20 of the Equality Act 2010 provides that an employer’s failure to make reasonable adjustments for a disabled employee is discrimination. However, this duty only arises where there is a “provision, criterion or practice” (PCP) which puts people with a disability at a particular disadvantage compared to people who do not have a disability.

Facts of the case

The claimant, Mr Carreras, suffered a serious accident that left him with lasting physical symptoms. He had been frequently working until 11pm before his accident, but began working until around 7pm after the accident. However, Mr Carreras claimed his employers required him to work “unsuitable hours”, putting pressure on him to stay later. He eventually resigned due to the pressure, claiming unfair constructive dismissal and disability discrimination (failure to make reasonable adjustments). The PCP he pleaded was a “requirement” to work long hours.

Both his claims were dismissed by an employment tribunal (ET) which considered that there was no “requirement” on Mr Carreras to work long hours rather repeated requested which indicated he was expected to do so .

The Employment Appeal Tribunal (EAT) allowed an appeal, and ruled that the ET’s interpretation of the term “required” had been too narrow. The EAT felt it was clear that Mr Carreras had felt pressured to work late, because there was an expectation that he would. The EAT decided that the term “required” could encompass this expectation and pressure. The employer then appealed the EAT’s decision.

Court of Appeal decision

In United First Partners Research v Carreras, the Court of Appeal agreed with the EAT’s assessment that, for the purposes of disability discrimination, the expectation to work long hours did amount to a PCP, there was no need to show actual coercion by the employer.

The Court also agreed that the ET made a mistake in not recognising that the employer’s repudiatory breach of contract was, ultimately, the reason for Mr Carreras’s resignation.

Conclusion

This decision will make it easier for claimants to bring disability discrimination cases as it endorses the argument that a PCP is a very broad concept – it does not just apply to a company’s formal practices or policies and apparently, as in this case, the employee does not even have to be ordered to do something, even asking employees to do something could amount to a PCP.

Claims of indirect discrimination also require a PCP to be shown so this case will be relevant to such claims as well. Indirect discrimination can be hard to spot as a PCP will apply to everyone and therefore appear to be a fair and neutral requirement.