Expectation that employees would work long hours triggered duty to make reasonable adjustments
In the recent case of Carreras v United First Partners Research the Employment Appeal Tribunal has held that an expectation that a disabled employee would work late constituted a provision, criterion or practice (PCP) which triggered the duty to make reasonable adjustments.
Mr Carreras was employed by a brokerage firm as an analyst and worked long hours. He was involved in a serious road traffic accident, as a result of which he experienced dizziness, fatigue, headaches, trouble concentrating and had difficulty working in the evenings.
When Mr Carreras was well enough to return to work, he initially returned on reduced hours, however after a period of several months, his employer began asking him to work in the evenings. When Mr Carreras objected to working late because of his tiredness, one of the owners of the business responded that if he didn’t like it he could leave. Mr Carreras resigned. He brought claims of disability discrimination based on a failure to make reasonable adjustments (in respect of the practice of expecting employees to work late) and unfair dismissal.
The EAT upheld the claim. It took the view that a liberal approach should be adopted when determining what constitutes a PCP. The reality of the situation was that Mr Carreras felt obliged to work late. His employer had requested and then expected him to do so. This amounted to a PCP, which meant that the employer was required to make reasonable adjustments to this expectation for Mr Carreras.
Employers whose working practices regularly involve working long hours and/or working late should be vigilant when it comes to employees who have disabilities which might make this difficult for them. Employers should not put pressure on employees to work long hours or late in these circumstances and should consider actively discouraging them from doing so. However, it is not clear what the outcome would have been if the employer hadn’t explicitly asked Mr Carreras to work late and he had simply felt compelIed to do so because of the culture of the organisation.
Dismissal of teacher who stood by husband following criminal conviction was religious discrimination
In Pendleton v Derbyshire County Council and the Governing Body of Glebe Junior School the EAT has held that a teacher suffered indirect religious discrimination when she was dismissed for standing by her husband, the headteacher of another school, after he was convicted of downloading indecent images of children and voyeurism. Mrs Pendleton was a practising Anglican Christian and made her decision in light of her marriage vows.
The EAT held that forcing an employee to choose between their partner and her career gave rise to a particular disadvantage for individuals with a religious belief in the sanctity of marriage vows.
Although it had been open to the school to defend the claim by producing evidence to show that the decision to dismiss Mrs Pendleton was justified, no such evidence had been put before the Tribunal.
Employee who was summarily dismissed for gross misconduct could claim disability discrimination
The EAT has held in Risby v London Borough of Waltham Forest that there only needs to be a loose causal link between an employee’s conduct and their disability for a discrimination arising from disability claim to be made out.
Mr Risby was a paraplegic and was employed by London Borough of Waltham Forest for 23 years. In 2013, Waltham Forest organised workshops for their managers, including Mr Risby. Initially, the workshops were to take place at a private venue which had wheelchair access. However, when Waltham Forest decided to stop using external venues for training in order to save money, the venue for the workshops was changed to the basement of one of Waltham Forest’s buildings, which was inaccessible to Mr Risby.
Mr Risby was very angry and upset about the decision to change the venue to a location which was inaccessible. He lost his temper and shouted at a junior colleague, bringing her close to tears. His comments included, “the council would not get away with this if they said that no f***ing n***ers were allowed to attend” and that he was being treated “like a n***er in the woodpile”. Mr Risby was unaware that his colleague was of mixed race and believed his comments were directed at her. Following a disciplinary investigation, he was summarily dismissed on the grounds of gross misconduct.
Mr Risby brought claims for unfair dismissal and discrimination arising from a disability. The Employment Tribunal dismissed Mr Risby’s claims on the basis that there was no direct link between his disability and the behaviour for which he was dismissed. Mr Risby appealed to the EAT.
The EAT allowed Mr Risby’s appeal and remitted the case back to the Employment Tribunal for a rehearing.
The EAT’s view was that if Mr Risby had not been disabled by paraplegia, he would not have been angered by the decision to hold the workshop in an inaccessible venue, so his disability was an effective cause of his conduct. The fact that Mr Risby was short-tempered (which was not related to his disability) was also a cause of his conduct, however that did not mean that the other cause, which was related to his disability, should be disregarded.
Whilst this decision makes it easier for employees to demonstrate a link between their disability and “something arising in consequence of the disability” it does not mean that it was necessarily wrong for Waltham Forest to dismiss Mr Risby in these circumstances. Waltham Forest may still be able to successfully defend Mr Risby’s claims by showing that that its decision to dismiss him was a proportionate means of achieving the legitimate aim of upholding its equal opportunities policy i.e. it may still be able to show that the dismissal was justified. The case will now be re-heard.