An employer will be guilty of indirect discrimination if it has in place a “provision, criterion or practice” (PCP) which places an employee at a substantial disadvantage compared to non-disabled employees, and cannot be objectively justified.
Facts of the case
In this case, the business did not have an express requirement for employees to work long hours but first asked Mr Carreras to work longer hours and then expected him to work late at least 2 days a week. The result was that Mr Carreras felt obliged to work late. Mr Carreras had recently returned from a serious cycling accident and as a result of the ongoing effect of the accident, was struggling to work the long hours he worked prior to the accident.
The Employment Tribunal (ET) found that there was no requirement to work long hours and so there was no PCP. The EAT disagreed: the expectation that he should work long hours was enough to form a PCP. The ET itself had observed that “he would have considered there were commercial and political reasons why he should work late”.
This case opens the gateway for arguments that working cultures that actively encourage and reward those that work long hours could be discriminatory. This argument could be extended to other types of discrimination, sex discrimination for example.
In this case the expectation to work long hours was made expressly clear by the employer, but in the future we can see the ET sympathising with employees where it is not so obvious.
Things to consider
Consider whether your business tends to:
- Promote or reward those who work long hours;
- Set targets and a workload that can only be met through a work regime – this may be more difficult for those with physical or mental conditions;
- Expect employees to read and reply to emails 24/7 – this could be more difficult for those with mental conditions such as depression and anxiety to comply with.