Expectation that employee would work late was a PCP

01.07.2016

The EAT has held in Carreras -v- United First Partners Research 2016 that an expectation or assumption that an employee would work late was capable of amounting to a provision, criteria, or practice (PCP) for the purposes of the Equality Act 2010.
Mr Carreras was employed as an analyst and frequently worked long hours (from 8 or 9am until about 9 – 11 pm) until he was involved in a serious cycling accident. As a consequence of the accident, he suffered from dizziness, fatigue, and headaches, and had difficulty concentrating and focusing, particularly in the evening. When the claimant returned to work, he worked an eight hour day, but over time this increased to the point where there was an assumption that he would work one or two late nights each week. The Tribunal found that the question had become which nights he would work late, rather than whether he would work late.
Mr Carreras objected to working late, because of the specific symptoms he was suffering from. After he had made this known, he had a heated exchange with one of the owners of the business and subsequently resigned, bringing claims for disability discrimination (failure to make reasonable adjustments) and constructive dismissal.
The PCP relied upon by the claimant was the requirement to work late. The employer argued that he had only been requested, as opposed to actually compelled, to work late. The Tribunal dismissed the claim, holding that there was no ‘requirement’ to work late as the claimant had pleaded. On appeal, the EAT criticised the approach of the Tribunal and held that a liberal approach must be taken when identifying a PCP. Although ‘requirement’ could suggest an element of compulsion, an expectation or assumption (which did exist, on the facts) could be sufficient.
In light of this decision the case was remitted to the same Tribunal to determine the nature and extent of the disadvantage suffered by the claimant, and to assess the adjustments that it might have been reasonable for the employer to make.