Thu 05 Apr 2018

Is an expectation of working long hours a PCP?

The Court of Appeal has considered whether an expectation to work long hours can equate to a provision, criterion or practice ("PCP") for the purposes of a disability discrimination claim.

The expectation of working long hours is, according to numerous surveys, a common one in the British workplace.  In theory, an expectation is not an overtly stated rule - rather it is a workplace culture, and arguably one which can be created by the employees themselves.   In United First Partnership Research v Carreras the Court of Appeal have considered whether such a culture can amount to a PCP for the purposes of a disability discrimination claim.

The Claimant was employed as an analyst, was good at his job and worked long hours.  However he was involved in a serious cycling accident in 2012.  Despite suffering severe injuries he returned to work within a few weeks.  His symptoms included dizziness, difficulty concentrating, headaches and fatigue.  During the first 6 months following his return the Claimant worked no more than 8 hours a day (his working days prior to his accident averaging 10 to 12 hours).  However, as time went on he began to request later working hours. That progressed to his employer making requests of him and then to an assumption he would work late one or two nights a week with the Respondent's asking him which nights he would be working rather than asking him if he was prepared to work any at all.

In February 2014 matters came to a head.  The Claimant had formally objected to working late because of his tiredness and later that day had a heated exchange with one of the owners of the business during which he was told he could leave if he wished.  He left the office returning only to pick up his belongings and to confirm he was resigning.  He subsequently made complaints of constructive dismissal and failure to comply with the duty to make reasonable adjustments. 

Before the Employment Tribunal the Claimant relied on a PCP that he was required to work late but the employer contended that the working late was voluntary for the Claimant following his accident - he had been requested to work late but was not required to do so.  However, the Tribunal found that the requests to work late had progressed to being an expectation that the Claimant would do so.  The Tribunal did not though accept that the Claimant had been coerced to work late - coercion being an element the Tribunal found necessary to establish a requirement. The Tribunal also accepted that working late placed the Claimant at a disadvantage due to his disability.  However, his claim was dismissed because the "expectation" that the Claimant should work late was not the PCP he had relied on - that being a "requirement" which was not the same thing.  The constructive dismissal claim was also dismissed.

On appeal to the EAT it was held that the Tribunal had taken an overly technical approach to identifying the PCP.  While "requirement" could be taken to imply an element of compulsion, the EAT found that it did not need any element of coercion and an expectation or assumption placed on an employee to work late would suffice.  Characterising the employer's expectation as a requirement (as the Claimant had done in his pleadings) was, according to the EAT, an "entirely straight forward construction" of his case. 

On further appeal the Court of Appeal upheld the EAT's decision. 

It is of note that after the cycling accident the employer did not obtain a medical report - they simply decided to go with whatever hours the Claimant said he could work.  This, at first sight, may seem very reasonable, but, in fact, it is an example of how obtaining a medical report can protect both the employer and the employee.  Had a medical report been obtained and the employer taken more formal steps to communicate with the Claimant about what he was able to do, then the situation may not have escalated in the way it did.  Equally, the Claimant may have felt more able to state he was unable to work the requested hours if he had a medical report to back his position. 

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