Case law: Mere expectation that a disabled employee will work late can lead to disability discrimination claim
Employers should beware giving disabled employees the impression that they are expected to work late, as this could justify the employee bringing an indirect discrimination claim on grounds they failed to make reasonable adjustments.
This update was published in Legal Alert - April 2018
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An employee had a high-powered analyst job in financial services and regularly worked late. He was then involved in an accident outside work which left him with dizziness, tiredness, inability to concentrate and headaches. Particularly, it was hard for him to work in the evenings, and his employer knew this. These symptoms meant he was disabled for employment law purposes.
On his return to work he initially worked an 8-hour day but his hours gradually crept up. Sometimes, he worked extra hours because his employer asked him to, and sometimes he chose to. Because he was working extra hours regularly, without objecting to them, his employer assumed over time that he would work one or two late nights every week and began asking him which nights he would be working late. He claimed there was a pattern of repeated requests, so there was pressure on him to work the extra hours.
Eventually, he formally complained about 'having' to work late. His manager shouted at him in front of other employees, saying that he should leave if he did not like working late. He resigned that day and claimed indirect disability discrimination, on grounds his employee had failed to make reasonable adjustments for his disability.
It is indirect discrimination if an employer operates a provision, criterion or practice (PCP) which puts people with a disability (including the employee who is complaining about it) at a substantial disadvantage compared with people who do not have that disability. If there is such a PCP, the employer must make 'reasonable adjustments' for disabled employees to remove the substantial disadvantage. Whether an adjustment is 'reasonable' depends on the circumstances.
However, a PCP will not be unlawful if it is a proportionate means of achieving a legitimate aim – for example, there are health and safety reasons for it.
In this case, the employee argued that the PCP was the requirement to work extra hours in the evening. He said he was required to work those hours because he was afraid that failing to do so could lead to a loss of his bonus (previously around £100,000 per year) or even redundancy. The employer argued that he was not required to work late – he had voluntarily chosen to do so – so there was no PCP.
The Employment Tribunal ruled that, while the employee may have decided it was in his interests to work late, and even though an assumption had developed that he would do so, none of this amounted to his employer 'requiring' him to work late. On the occasions he had specifically been asked to work late he could always have said 'no'.
However, on appeal, the Court of Appeal disagreed. It ruled that an assumption or other expectation that an employee would work late could amount to 'requiring' them to do so, even though there was no apparent compulsion by the employer. There was, therefore, a PCP that employees would work late, and there was an issue to be decided over what reasonable adjustments should have been made.
- Employers should ensure they make clear to a disabled employee who is expected to work in certain ways or at certain times that (if this is the case) they are not required to do so, or they risk an indirect discrimination claim on grounds they failed to make reasonable adjustments for the employee.
Case ref: United First Partners Research v Carreras  EWCA Civ 323
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