Labour & European Law Review Weekly Issue 478 13 July 2016
When bringing a claim of failure to make a reasonable adjustment, workers have to show that their employer applied a provision, criterion or practice (PCP) which put them at a substantial disadvantage in comparison with someone who does not have a disability. In Carreras v United First Partners Research, the Employment Appeal Tribunal (EAT) held that tribunals should not take an “overly technical” and “unduly narrow” view of the PCP identified by a claimant.
Mr Carreras was an analyst for a brokerage firm who regularly worked a 12 to 15-hour day prior to being involved in a serious road accident whilst riding his bike in July 2012. He returned to work within a few weeks, but worked no more than eight hours a day for the first six months. He then voluntarily started to work longer hours and as of October 2013, he requested late working up till 9pm. That progressed into requests by the firm that he would regularly work late and then to an assumption that he would work one or two later nights per week. He started to feel under pressure to work later, but did not complain as he was concerned that he might be made redundant or his bonus might be affected.
During this period, there were other issues which included late payment of his bonus. In addition, his employer provided misleading information about his hours to the solicitors pursuing his personal injury claim following the bike accident.
Matters came to a head on 14 February 2014 when he wrote to his employer, formally objecting to working late in the evenings. This led to a heated exchange between him and one of the owners after which Mr Carreras resigned and claimed disability discrimination (failure to make reasonable adjustments), relying on a PCP that he had been required to work late. He also claimed constructive dismissal.
The tribunal accepted that he was a disabled person and that the firm was aware of his disability. However, it rejected his discrimination claim on the basis that there was no “requirement” to work late, simply an expectation.
With regard to his constructive dismissal claim, it held that the cumulative effect of the delay in bonus payments, the assumption he should work late, the lack of care in the letter to his solicitors and his boss’s conduct on 14 February 2014 amounted to a fundamental breach of his contract. However, it held that Mr Carreras had not resigned in response to the breach as he agreed he would have gone back had he been asked to do so. It was only after his resignation had been accepted that he set out his reasons in a detailed email on 18 February 2014.
With regard to the discrimination claim, the EAT agreed with Mr Carreras that the tribunal had taken an “overly technical” and “unduly narrow” view of the PCP that he had identified in his ET1. Instead it should have adopted a “real world view” of what a requirement was in this context. In particular, the tribunal had found that there was an expectation by the firm as to when he would work later and not whether he would work late. As such there was clearly an element of compulsion. The EAT remitted the case to the tribunal to decide the nature and effect of the disadvantage caused by the PCP of working later hours and the steps it might have been reasonable for the employer to take.
The tribunal had also taken the wrong approach to the constructive dismissal claim. The question was not so much whether the breach of contract constituted the reason for the resignation as whether it was a reason. It was obvious from the evidence that something had happened on the morning of 14 February that caused him to resign. The only permissible conclusion was that he had resigned in response to his employer’s repudiatory breach. It therefore set aside the tribunal’s decision and allowed his complaint of unfair constructive dismissal.
The EAT’s decision is consistent with the Equality and Human Rights Commission’s Employment Code of Practice that a provision, criterion or practice should be given a broad interpretation. In this case matters had progressed from the employer asking the worker to work late to an assumption or expectation that the worker would do so.