Disability discrimination by reason of employer “expectations”

The Equality Act 2010 protects employees from discrimination on the grounds of disability. Employers are required to make reasonable adjustments for disabled employees who may suffer disadvantage in the workplace. This requirement extends to a provision, criterion or practice (PCP) which applies to all staff but which places a disabled employee at a particular disadvantage.

The Court of Appeal has found that an expectation that an employee works long hours can amount to a PCP and therefore an employer can be liable for disability discrimination for failing to make reasonable adjustments to that PCP for disabled employees.

In the case of United First Partners Research v Carreras [2018] EWCA 323 the Claimant had worked at the Respondent company for 10 months before being involved in a cycling accident in 2012 which left him seriously affected both mentally and physically, amounting to a disability under the Equality Act. The Claimant returned to work shortly after the accident but continued to suffer headaches, dizziness and fatigue which meant that he could not work the long hours that he had prior to the accident.

His employer soon began to make requests for the Claimant to work later hours which he found difficult due to ongoing problems arising from the accident. His employer however continued to put pressure on him to work late and eventually stopped asking him if he could work late and began to ask when he would be working late. The Claimant felt that if he did not comply with the requests that he would lose his bonus or his job. Around 5 months later, the Claimant sent an email to his supervisor formally objecting to working later hours. In response to that the Claimant was publicly reprimanded by his supervisor and was told that he could leave if he did not like working the expected hours. The Claimant resigned the same day.

The Claimant’s case before the Employment Tribunal was that he was constructively dismissed by his employer and that it had discriminated against him on the grounds of disability by imposing the PCP requiring him to work late and by failing to make reasonable adjustments to that PCP, despite the employer being aware of his condition.

The Employment Tribunal dismissed the claims. It found that the Claimant had never been ‘required’ to work in the evening and that the Claimant’s decision to resign was not in response to the supervisor’s conduct and could not therefore constitute constructive dismissal. The Claimant appealed to the Employment Appeal Tribunal.

The Employment Appeal Tribunal allowed the appeal and found that the Employment Tribunal had been too restrictive in its interpretation of the PCP which required the Claimant to work late.

The Court of Appeal upheld the decision of the Employment Appeal Tribunal agreeing that the employer had discriminated against the Claimant by imposing the PCP requiring him to work late and not adjusting it to accommodate his disability. It also found that the conduct of the supervisor was at least in part the reason for the Claimant’s resignation and that was sufficient to constitute a constructive dismissal.

The Court of Appeal judgment is a reminder to employers to ensure that they are making reasonable adjustments in all areas of the business for disabled employees. It is common for companies to have a culture of working late and where this is the case employers should ensure that employees do not feel under pressure to conform to such a culture, particularly where it would place them at an unfair disadvantage.

If you have any questions regarding this topic or any employment issue, please contact Head of Employment, Linky Trott, or any member of the Edwin Coe Employment team.

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