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Jackets on the backs of chairs: The unwritten rule

BTO Solicitors

Workplace pressures are all too common. From an employer’s perspective, an ideal employee will come in early, stay late and will always choose to put their jobs before their personal commitments, needs and often their health. Not fitting in with a workplace culture of this type may affect their career and prospects for advancement. This is all very well for a healthy (presumably single) individual but what are the consequences when illness makes this impossible?

The Court of Appeal considered this situation in the case of Carreras v United First Partnership Research.

The claimant was an analyst with United First Partnership Research, a brokerage firm. As with many businesses in the financial sector, long hours were the norm and expected. The claimant usually worked 12-hour days.

The claimant was involved and badly injured, in a bike accident. Although seriously injured, he returned to work after a few weeks.  When he returned to work, he did so initially on shorter hours, working no more than 8 hours a day but continued to suffer from physical problems such as dizziness, fatigue and headaches. He also had difficulties concentrating and focusing and found it hard to work in the evenings. The claimant felt pressured to work longer hours, which initially were ad hoc but quickly, he said, became an expectation. Afraid that if he failed to do so, he may be made redundant or lose his bonus the claimant emailed his employer, formally objecting to working late in the evenings because of his tiredness. Following a heated and public exchange, one of the owners of the business told the claimant that if he did not like it, he could leave, the claimant resigned and brought claims for unfair constructive dismissal and disability discrimination, claiming the employer had failed to make reasonable adjustments.

The Equality Act 2010 requires an employer to make reasonable adjustments if there is a provision criterion or practice (PCP) which puts a disabled person at a substantial disadvantage, in comparison to an able-bodied person.

In the first instance, the Employment Tribunal found that there had not been a failure to make reasonable adjustments since the PCP relied on by the claimant, namely the requirement to work long hours, had not been established. As while he was "expected" to work late, the employer had not forced him to do so. On appeal, the EAT found in favour of the claimant; finding the reasoning of the Employment Tribunal too narrow in considering the PCP. As: -

(1) the employee felt pressured and obliged to work late and;

(2)the employer had requested, then expected him to do so. 

Thus, although a requirement might be taken to imply compulsion, an expectation or assumption placed on an employee may amount to a PCP. The Court of Appeal agreed with the EAT that the approach of the employment tribunal in its consideration of “required” was too narrow in terms of “compulsion” and it should have considered the clear evidence that the employee felt he had to work late because of the expectation and assumption that he would. This could amount to a PCP.

Does this case mean the bell tolls for such cultures? It seems unlikely, but it does highlight what might constitute a PCP is not narrow. There is, as this case illustrates, danger in promoting, intentionally or unintentionally, workplace cultures that can make people feel obliged to conform and work in a particular way.

Tagged With: Employment Appeals Tribunal, Working Hours, Workplace, Health, Employee

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