An expectation or assumption that an employee will do something can be a PCP

In the recent case of Carerras v United First Parties Research (UKEAT/0266/15/RN) the Employment Appeal Tribunal has held that an expectation or assumption that an employee will do something can be a “provision criterion or practice” which triggered the duty to make reasonable adjustments.

Facts
Mr Carreras was employed by United First Partners Research (“United”) as an Analyst. His job typically involved working very long hours. He was involved in a serious cycling accident and it was common ground that, as a result of the injuries he sustained, he was disabled under the Equality Act 2010.  The effects of his disability meant that it was not suitable for him to work long hours.

When he first returned to work at United it was agreed that Mr Carreras would work no more than eight hours a day. However, as time went on this started to change- requests started to be made of him to work longer hours and eventually it was assumed that he would do so.

In the meantime, other issues arose which put the parties’ relationship under strain. This culminated in a ‘heated exchange’ between Mr Carreras and one of the owners of United following which Mr Carreras resigned without notice.

Mr Carreras then brought a claim for failure to make reasonable adjustments relying on United having a provision, criterion or practice (“PCP”) of requiring him to work late. He also brought a claim for constructive unfair dismissal.

At first instance the Employment Tribunal (“ET”) dismissed the claim for failure to make  reasonable adjustments on the basis that Mr Carreras had not been ‘required’ to work late in the sense of having been forced to do so. Although there was an expectation or assumption that he would work late (which the Tribunal found put Mr Carreras at a disadvantage) that was not the PCP that he had pleaded.

Mr Carreras appealed to the Employment Appeal Tribunal (“EAT”).

Legal Background
Under section 20 of the Equality Act 2010, in the event that an employer applies a PCP which puts a disabled person at a substantial disadvantage compared with persons who are not disabled the employer is required to take such steps as are reasonable to have to take to avoid the disadvantage.

The Equality and Human Rights Commission Code of Practice states that the phrase "provision, criterion or practice" "should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions".

The Decision
The EAT found for Mr Carreras. Referring to the EHRC Code of Practice, it said that the ET had taken an overly technical approach in deciding the claim. Although Mr Carreras had pleaded his case using the word ‘requirement’ this should not have been so narrowly construed.

The EAT recognised that the employment relationship is necessarily an unequal one and that employees can feel obliged to work in a particular way, even if that could damage their health.  Accordingly, and given that the ET had found that the expectation that he would work late had put Mr Carerras at a disadvantage, characterising an employer’s expectation as a ‘requirement’ was an entirely straightforward construction of the way in which Mr Carerras had pleaded his case.

The claim was remitted to the ET to determine the nature and extent of the disadvantage (i.e. was it ‘substantial’) and what, if any, reasonable steps United should have taken to avoid that disadvantage.

Comment
The EAT has taken a pragmatic view here which recognises the complexities of the relationship between employer and employee and the variety of ways in which employees can be ‘required’ to do something.   The decision also recognises that, in order to give effect to legislation that is designed to protect employees, it is necessary to avoid taking too narrow an approach to how that legislation is interpreted.

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